Cases and authorities

Obligation for frank disclosure- Totality of relationship considered in determining s 9(3) factors- Extent of provision by parent to a child.

EQUITY - injunctions - interlocutory injunction to restrain publication of videotape of pop star's encounter in hotel room - requirement for serious question to be tried where law is unsettled ; EQUITY - breach of confidence with respect to videotape - whether description of contents of videotape in newspaper article destroys obligation of confidentiality; PRACTICE AND PROCEDURE - application for interlocutory order to disclose number and whereabouts of videotapes - whether interrogatories more appropriate

CRIMINAL LAW; sexual assault; kidnapping; sentencing; worst type of case; totality of sentence; fixed terms

Negligence - survival action - motor vehicle accident - finding by trial judge appealed - failure to keep a proper lookout - careless and unexpected act of deceased.

CONTRACT — Was consultancy agreement providing for various commission-type payments on third party sponsorship to association governing Australian women’s hockey void for uncertainty — Use of "and/or" — Distinction between ambiguity and uncertainty — Construction of contract — Principles — Independence or interdependence of obligations of consultant and association ; EVIDENCE — Failure to put allegations of untruthfulness against plaintiff in cross-examination — Unfairness and principle of Browne v Dunn.; WORDS AND PHRASES — "Sponsorship"; "and/or"; "renew"

PRACTICE & PROCEDURE; Application for default judgment (Supreme Court Rules 1970 Pt 17); Successive applications; Whether present application raises some new fact or circumstance justifying consideration of application

REAL PROPERTY - Co-ownership - Application for Appointment of Trustee for Sale - Stay of Order

Tort - nervous shock - plaintiff's son murdered in prison

PROCEDURE [316] - Inferior Courts - District Court - Removal into Supreme Court - After judgment entered - Whether District Court Act 1973, s 145 confers power to remove.

Appeal from decision of Local Court, Newcastle; Stated Case; Public Liability & Product Liability Insurance; Non-disclosure of prior claims

Constructive Trust- No evidence of common intention; Homosexual relationship - Nature of dependency- Factors terminating relationship.

TRADE PRACTICES; Misleading and deceptive conduct (Fair Trading Act 1987 (NSW) s 42) ; Contract for purchase of nightclub land and equipment; Claim by liquidator over hotelier's licence; Knowledge on part of vendor of liquidator's claim; Failure to impart knowledge to purchaser; Whether representation with respect to a future matter; Whether representation by silence; Whether reasonable grounds for making representation; Whether loss suffered as a result of contravention of Act (reliance); ESTOPPEL; Issue estoppel; Application of principles in Port of Melbourne Authority v Anshun Pty Ltd (No 2)

EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Circumstances in which statements concerning entertainment or social occasions may be admissible under Evidence Act 1995, s 69

Personal injury; damages; effect of post-injury heart attack on quantification; age of retirement; past and future economic loss.

DAMAGES - wife suffers permanent brain injury during abortion - nervous shock of husband - wife’s "estate" managed by Protective Commissioner under Protected Estates Act 1983 - wife awarded amounts for past gratuitous care and future care and management - husband principal carer - whether husband should claim payment from Protective Commissioner for amount awarded to wife for past voluntary services provided by the husband - whether failure to mitigate - whether "double dipping" in awards for past gratuitous care to wife and past economic loss to husband; DAMAGES - apportionment of past and future economic loss for nervous shock consequent on serious injury to wife - whether should have been made to reflect husband’s non compensable grief and depression; DAMAGES - whether carer’s benefit under Social Security Act and maintenance payments by Protective Commissioner should have been deducted from award for economic loss

Summons for order to stay any suspension of right to practise as a legal practitioner in NSW - Whether prohibition of reinstatement of claimant on the Roll of Solicitors of the Law Society of England and Wales is equivalent to suspension or removal from the roll for the purposes of Pt 65A r 3 of the NSW Supreme Court Rules.

NEGLIGENCE - negligent missstatement - loan contract - economic loss - whether there was inducement and reliance; TRADE PRACTICES - loan contract - misleading or deceptive conduct; PRACTICE & PROCEDURE - costs - cross-claim - separate action - Court cannot order costs against person not party to the cross-claim

SUCCESSION - intestacy - will subject to grant of probate later found to be forged by executor - administrator of estate seeks repayment of moneys received by beneficiaries under the forged will; TRUSTS - constructive trusts - liability for 'knowing receipt' - discussion of relevant principles - whether second and third defendants had 'knowledge' that will was invalid - availability of defence of change of position; EQUITY - remedies - tracing - subrogation - whether inequitable to charge home of third defendant.; UNJUST ENRICHMENT - moneys had and received to the use of the plaintiff - payments made under mistake - defence of change of position - whether second and third defendants acted to their detriment on the faith of the receipt - broad approach to assessment of change of position and detriment - assess nett advantage or nett disadvantage - defendants entitled to rely on reasonable estimates of expenditure - time from which interest payable.; COSTS - appropriate case to depart from ordinary order for costs.

Contract - Construction contracts - Settlement of disputes - Dispute resolution procedures a condition precedent to commencing expert resolution or judicial proceedings - Requirement that the parties utilise dispute resolution procedures in "good faith" - Meaning of "good faith" - Whether provision sufficiently certain to be enforced - Whether proceedings ought be adjourned or stayed; Procedure - Stay - Dispute resolution procedure a term of the contract - Stay order where abuse of process to sue - Exercise of court’s discretion.

Application for Letters of Administration in circumstances in which the existence of a de facto relationship is challenged on the basis of an absence of a sexual relationship - Indicia of a de facto relationship.

Criminal trial - discharge of jury - inappropriateness of deferring discharge for a purpose collateral to continuing the trial before the present jury.

Appeal from Local Court; liability of principal for agreement made by agent; whether finding of actual authority available on evidence; whether findings of magistrate involved error of law; Local Courts (Civil Claims) Act, s 69(2).

appeal against being declared a vexatious litigant

LANDLORD AND TENANT - Leases - option to renew - breach of covenant after notice of intention to renew - compliance with covenants to expiry condition precedent to right to new lease - effect of s133E of Conveyancing Act - purported exercise of option - when occurring - competing single judge decisions - Agreements for lease - when leases under s129 of Conveyancing Act - s128 of Act - requirement for term to have commenced; LAW REFORM - Conveyancing Act ss133E-133G - need for amendment

Practice and procedure - Subpoenas - Setting aside subpoenas as oppressive - Entitlement of parties to build up an evidentiary mosaic - Requirement that the Court balance competing considerations in permitting use of subpoena procedure to investigate issues of credit - Obvious danger of permitting a party by use of subpoena procedure to investigate issues of credit having no conceivable relevance to issues pleaded, in the sense that to permit such subpoenas would open up matters falling outside the legitimate field of enquiry raised by the issues in contest - Inspection may be granted, so far as is necessary in the proper conduct of the litigation, where the Court forms the view that the material falls within the legitimate field of enquiry raised by the issues in contest and is reasonably likely to add in the end in some way or other, to the relevant evidence in the case.

CRIMINAL LAW- appeals - appeal against conviction and sentence; CRIMINAL LAW - directions to jury - provocation - whether directions on provocation by "words alone" correct - whether directions on standard of proof correct; CRIMINAL LAW - directions to jury - whether further directions offended principle in Black; CRIMINAL LAW - sentencing - whether special circumstances justifying a variation of the ratio between minimum andadditional terms

Negligent misstatement; misfeasance in public office; duty of care; breach; pure economic loss; liability for negligent information or advice; reliance; inducement; necessity for further inquiry by representee; consideration of representor's knowledge of representee's contemplated transaction; whether representor had knowledge that information was basis for critical step by representee; foreseeability; "control" of representor; "vulnerability" of representee; consideration of Perre v Apand Pty Ltd [1999] HCA 26.

negligence - assessment of damages - quantum and apportionment of damages - Motor Accidents Act 1988 - novus actus interveniens

BILLS OF SALE - Bills of Sale Act 1898, ss3, 4, 5 - Whether trader's bill of sale invalid - Whether, if it was, there could be rectification of the non-compliance - Whether, if it was not, the equitable charge was consequentially invalid - Statutory declaration as part of the same document - Whether trader's bill of sale set forth the usual name or style under which the business was carried on - Meaning of "set forth".

Costs - no question of principle

MOTOR ACCIDENT - Injuries and ongoing disabilities - Which injuries directly caused by the accident - Whether the respondent was already permanently unemployable at time of accident - Extent to which pre-accident personality and problems were affected by the accident; DAMAGES - Award for future economic loss - Whether respondent would have worked until age 60 or 65 - Whether to allow for promotion, overtime or other allowances - Whether to allow for superannuation loss in the future - Whether resourcefulness of respondent taken into account in allowance for vicissitudes of life - Whether proposed career change taken into account - Impact of medical history and personality problems on employability - Whether trial judge failed to appreciate and act upon the significance of primary facts he had found; DAMAGES - Award for past economic loss - Whether trial judge’s prognosis of respondent’s pre-accident earning capacity revealed appealable error ; DAMAGES - Award for non-economic loss revealed no appealable error; DAMAGES - Challenge to award of future out of pocket expenses - Whether sufficient evidence on this point.

Applications for extension of time to appeal.

PROCEDURE - COSTS - Plaintiff discontinues after obtaining return of material taken by defendant employee - Basis of costs decision.

LOCAL GOVERNMENT [17] - Regulation and Administration - Councillors - Disqualification for Voting - Interest in Matter or Contract - Whether councillor who has disclosed interest and is disqualified from voting may be counted towards quorum - Local Government Act 1993, s 368; MEETINGS [5] - Conduct of business - Quorum - Whether participants who are disqualified from participating in discussions and voting may be counted in quorum; STATUTES [20], [30] - Acts of Parliament - Interpretation - Rules of Construction - Where Meaning Ambiguous or Uncertain - Presumptions as to Legislative Intention - Not to Alter Common Law Doctrines - No Alteration Beyond - Necessary Effect - Expressio Unius est Exclusio Alterius - Caution in Application - Local Government Act 1993, s 368 properly construed does not displace common law rule that a person present at a meeting who is disqualified from participating or voting cannot be counted towards a quorum.

De Facto Relationships Act 1984; Relationship obtained during two distinct periods, interrupted by a separation; Adjustment of interests in property; Respective contributions of each party; Respective earnings and income of parties; Plaintiff principal breadwinner.

Civil trial - application under s89 Supreme Court Act to dispense with jury - publicity unfavourable to defendants - expert evidence - whether trial by jury unfair or impracticable

EQUITY - construction of Alignment of Streets Act 1834 - whether laneway deemed to be dedicated to the public - Deed of Partition - middle of the road rule; EVIDENCE - s 79 Evidence Act - 'wholly or substantially based'

PROPERTY - whether transfer by oral agreement giving rise to a trust - no evidence

DAMAGES - measure of - personal injuries - dust diseases - non-economic loss - interest - whether interest on award for non-ecomic loss part of that award or whether part of award for economic - whether interest on award for non-economic loss protected from reduction by s12D

Summons; Dismissal; Tests to be applied; Strike out; Fiduciary relationship - directors; Material facts.

Armed robbery - Crown appeal against inadequacy of sentence - minimum term disproportionately short - rehabilitation to be weighed with objective considerations including personal and general deterrence - minimum term to reflect period in custody objective circumstances require be served - effect of guideline judgment in Henry & Ors - necessity for sentencing judges to accept and apply principles.

Criminal Law and Procedure - Claim By Appellant To Have Lied To Investigators - Crown Case That He Told The Truth - Adequacy Of Directions To Jury

Summons - Whether abuse of process - Whether procedural fairness - No question of principle.

APPEAL AND NEW TRIAL - Errors made by trial judge in making findings of fact - Errors demonstrated by documents in evidence or by reference to transcript - Whether judge misused his advantage as trial judge; MISREPRESENTATION - Whether statement sent by solicitor for one party to the solicitor for other party for the purposes of mediation capable of amounting to representation that person to whom statement attributed had approved it or a representation that the statement was one which that person had not refused to sign - Whether sending of statement evidence of misleading or deceptive conduct - Trade Practices Act 1974 (Cth), s52; LIMITATIONS - Whether cause of action under s52 of Trade Practices Act barred because it had accrued more than 3 years before institution of cross-claim by which appellants brought proceedings - Trade Practices Act, s82(2), s87(1CA)(b); AFFIRMATION - Whether facts and circumstances relied upon by bank demonstrated that appellants had affirmed the settlement achieved at the mediation - Whether court on appeal unable to make findings because of miscarriage of trial and consequent lack of findings

Negligence; Damages for injury whilst attending rock concert; Liability of Centre manager, concert promoter and security firm; Terms of hiring contract; Dancing and crowd surfing; Non-delegable duty of care