Cases and authorities

Constitutional law - places acquired by Commonwealth for public purposes - exclusive legislative power of Commonwealth Parliament - sale and transfer of Commonwealth place to private corporation - State stamp duties legislation held invalid to the extent that it purported to impose stamp duty on contract of sale and memorandum of transfer; Corporation - company - winding up summons for non-payment of stamp duty - plaintiff had no standing as duty held not to be payable.

CONVERSION - Deposit of cheques drawn in favour of plaintiff into trust account of plaintiff’s accountants contrary to plaintiff’s instructions - Accountants guilty of conversion of cheques but no damages caused by conversion.; EQUITY - FIDUCIARY DUTY - Deposit of cheques drawn in favour of plaintiff into trust account of plaintiff’s accountants contrary to plaintiff’s instructions - Accountants guilty of breach of fiduciary duty owed to plaintiff but no damages caused by breach.; NEGLIGENCE - DUTY OF CARE - In particular circumstances, accountants owed positive duty in tort to plaintiff to advise (inform) plaintiff of nature of proposed interest bearing investment to be made on plaintiff’s behalf including investment risk involved - Breach of duty by accountants causing loss to plaintiff - Accountants liable in damages for loss.; CONTRIBUTORY NEGLIGENCE - In particular circumstances plaintiff contributed to loss as to 15%.; EQUITY - NON-FIDUCIARY EQUITABLE DUTY - In particular circumstances, accountants subject to non-fiduciary equitable duty substantially co-extensive with accountants’ duty in tort - Accountants liable to compensate plaintiff for loss.; EQUITY - TRUSTEES - TRUSTEE ACT 1925 - AUTHORISED INVESTMENTS - In particular circumstances, accountants although also trustees, not limited in making interest-bearing investments on behalf of plaintiff to investments authorised by or under the Trustee Act 1925.; EQUITY - TRUSTEES - TRUSTEE ACT 1925 (SECTION 85) - CLAIM FOR RELIEF AGAINT PERSONAL LIABILITY - If accountants otherwise eligible to claim relief against personal liability for breach of trust, in particular circumstances accountants not entitled to relief because although acted honestly did not act reasonably.; TORT - MEASURE OF DAMAGES - Plaintiff entitled to be compensated in amount necessary to put plaintiff in position plaintiff would have been in if wrongful act had not occurred.

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM. MORTAGES. TRUSTS AND TRUSTEES. Trustees purport to appoint company, of which they are sole directors, trustee of a family trust. The appointment is ineffectual, because not registered. The purported trustee mortgages trust property to Bank (which has notice of the trust), the mortgages are registered, and the Bank advances money to the purported trustee. On default, the Bank seeks possession of the mortgaged property. On behalf of the trust, it is contended that the Bank's title is subject to the trust. HELD that (assuming the participation of the true trustees in the grant of the mortgages did not bind the trust) the Bank's title to the mortgages was indefeasible; that the advances of money to the purported trustee effected pro tanto purchases of charges over the property, which were not indefeasible; that (assuming the participation of the true trustees in the reciept of the advances by the purported trustee did not bind the trust) the Bank could rely on the legal title unless and until it was shown that the advances were applied otherwise than in accorance with determinations of the true trustees and that there was loss of the beneficiaries; that Section 66B of the Conveyancing Act (assuming it applied otherwise than to sales properly so called) did not give a cause of action without proof of loss and causation of loss

Criminal trial - application to take evidence overseas by audio visual link - no sanction for false testmony - meaning of oath under Evidence Act.

CORPORATIONS [322] - Supervision, regulation and correction - Examination - Scope of examination - Access to documents - Solicitor's lien not ground not to produce in answer to order under Corporations Law s 597 - Conditions on which access to documents produced will be granted; PROFESSIONS [170] - Lawyers - Liens - Possessory liens - Incidents of lien - Production - Lien not ground not to produce in answer to order under Corporations Law s 597 - Conditions on which access to documents produced will be granted.

CONTRACT; Privity; Agreement for sale of share/unit holding; Whether acknowledgment that vendors' costs 'shall be payable by the business' enforceable against company

Leave to file cross claim

ASSESSMENT OF DAMAGES - whether reasons sufficient - need not be lengthy or elaborate, or deal with ever matter raised in the proceedings - but had to show attention given to critical evidence and basis of critical findings and explain fundamental reasons for conclusion - did not.

CRIMINAL LAW; application for leave to appeal severity of sentence; finding of special circumstances; appeal allowed, new sentence substituted.

Reasons for orders previously made - Leave to appeal subject to conditions - Conditional stay - Requirement of solicitor's undertaking to repay moneys if appeal successful

BIAS - Application to disqualify for bias - Reasonable apprehension of pre-judgment and bias; EVIDENCE - Expert - Argumentative and conclusory material in report

DISTRICT COURT - MVA - refusal of extension of time - Motor Accidents Act 1988 - unsatisfactory explanation - concurrent application for leave to appeal

NEGLIGENCE-liability-motor vehicle accident-rule in Browne v Dunn-whether open to trial Judge to make finding of excessive speed as a result of conduct of trial-whether trial Judge overlooked documentary evidence in making finding of no misfeasance in repair of road surface-whether negligence in failing to erect appropriate warning signs

Interlocutory appeal - Trial judge's order restricting inspection set aside by Court of Appeal - Inspection permitted - Present application to trial judge to restrict inspection - Whether open to trial judge to displace Court of Appeal's order by reference to matters which could have been, but were not, argued in the Court of Appeal - Role of notice of contention

LAND AND ENVIRONMENT COURT - whether development consent had lapsed by virtue of s 99 Environmental Planning and Assessment Act 1979 - s 102 application for modification of consent - discretion to refuse to grant declaratory relief in respect of lapse of consent

Extenson of limitation period - ss 60G & I Limitation Act

CONVEYANCING [106] - Relationship of vendor and purchaser - Breach of contract - Declaration of right - Circumstances in which declaratory relief alone may be granted; COSTS [574] - Departing from general rule - Order for costs on indemnity basis- Relevant considerations - Defendant represented but does not appear either to oppose or consent to orders

LOCAL COURTS; Appeal (Justices Act 1902 (NSW) Part 5); whether Magistrate erred in law in refusing application for recall of witnesses; whether open to Magistrate to conclude that defendant had suffered loss justifying award of damages

Extradition to New Zealand; order by magistrate for surrender to New Zealand; application for review; whether accusation not made in interests of justice; Extradition Act 1988 (Commonwealth) ss 28, 32, 34 and 35

Declarations- jurisidiction of CCT

Stay refused - No question of principle

NEGLIGENCE - Motor vehicle accident - Collision with cyclist - Whether cyclist on wrong side of carriageway or riding from footpath into path of oncoming car - Whether driver of car keeping proper look-out - No question of principle involved

Adequacy of reasons; Equal Opportunity Tribunal; discrimination on grounds of sex; discrimination on grounds of previous complaint; victimisation; specialist body; exercise of jurisdiction; whether error of law; no defect manifest on record; adequacy of reasons; whether failure to take material considerations into account.

CUSTOMS AND EXCISE - Duty - Anti-dumping duty - Countervailing duty

Appeal from magistrate - civil claim - negligent failure to advise - causation - burden of proof - powers of court on appeal - s69 Local Courts (Civil Claims) Act - Pt 5 of Justices Act.

CORPORATIONS LAW - Scheme of Arrangement - Judicial advice

Family Provision.; Application by a niece of deceased who was part of household for 6 months and partly dependent. Large estate. Applicant fails to call evidence of future requirements in support of claim. Difficulty facing court in the absence of such evidence.

PRACTICE & PROCEDURE; Cross-vesting legislation; Transfer of proceedings from Local Court (NSW) to Supreme Court (NSW); Transfer of proceedings to interstate court; Criteria to be applied; Whether NSW and interstate proceedings wholly distinct

CRIMINAL LAW; sexual assault; break enter and steal with corporal violence; false imprisonment; application for leave to appeal against conviction dismissed; application for leave to appeal sentences granted, appeal dismissed.

Criminal Law (C'th) - plea of guilty to charge of conspiracy to import prohibited drug - offer of assistance to authorities - sentence discounted accordingly - subsequent refusal to give evidence in accordance with undertaking - whether original undertaking given in good faith - whether refusal was "without reasonable excuse"; held: (i) Court not satisfied of lack of good faith; (ii) Court satisfied that lack of reasonable cause had been established.

CRIMINAL LAW; robbery; aiding and abetting attempted robbery; attempting to use an offensive weapon to prevent lawful apprehension; application for leave to appeal sentence; error as to maximum applicable sentence; s5(2) Sentencing Act 1989; sentence backdated; appeal allowed.

PARTNER'S MISAPPROPRIATION OF CLIENT FUNDS - partner obtaining secret profits and commissions from dealings in the prime bank instrument market - breach of fiduciary duty owed to client - dishonest and fraudulent conduct of partner - account opened by partner without authority of other partners - partner's operation of account in fraud of other partners; PROFESSIONAL INDEMNITY POLICIES - assured indemnified by insurers for civil liability incurred in connection with the practice - policy exclusion that assured would not be indemnified for liability arising from a contract other than a contract to provide services within the definition of the practice - policy exclusion that assured would not be indemnified in respect of liability 'brought about' by a dishonest or fraudulent act or omission of the assured including any partner of the assured - whether the words 'brought about' require a proximate cause inquiry - policy exclusion that assured would not be indemnified for knowledge of prior known circumstances

CONTRACT - where option to renew - whether renewal could be inferred from conduct ; CONTRACT - conventional estoppel

Workers Compensation; Injury sustained during employent; Economic loss

Plea to murder - cowardly killing while affected by alcohol and under brother's influence - belief in provocative acts of decesed - suffering from some degree of depression.

Contempt in the face of the court - threat to a witness - whether Pt 55, Div 2, applies where conduct not observed by trial judge.

INJUNCTIONS; POST & TELECOMMUNICATIONS; TRADE PRACTICES - Telephone services - misleading and deceptive conduct - misrepresentations mandatory injunction - corrective advertising - extent of order - mandatory order for corrective letter to customers refused - public interest - permanent injunction - not justified - injunction for limited term (5 years) - declaratory order - not justified - no real effect.

Family provision; Claim by adult son; Plaintiff equally entitled with his sisters to the only substantial asset in the estate; Relationship between the plaintiff and the deceased and between the plaintiff and the other beneficiaries; Competing claims of the other beneficiaries; Plaintiff incurred liabilities in contested Probate proceedings; Extension of time.

Sentence; pleas of guilty to two charges of accessory after the fact of murder

Equity - Practise and procedure - Interlocutory injunctions - Keeping of accounts as an alternative to grant of interlocutory injunctive relief - Juridical basis for ordering an account - Plaintiffs seek equitable relief including equitable compensation for alleged breaches of fiduciary duty - Order for the keeping of a record of profits - Costs of interlocutory application - Parties respective rights can only be properly determined at final hearing - Costs of interlocutory application to be costs in the cause.

APPEAL - Against conviction - Aggravated sexual assault (s61J Crimes Act) - Sexual intercourse with a person between 10 and 16 by person in authority (s66C(2) Crimes Act) - Whether verdict unsafe and unsatisfactory due to lack of evidentiary support; APPEAL - Against sentence - Whether total of sentences was manifestly excessive - Whether trial judge erred in considering broader context of offences - New sentence; EVIDENCE - Inadequate directions to jury regarding complaint evidence - Failure of trial judge to give adequate warnings in relation to evidence of the complainant - Admissibility of "coincidence" and "tendency" evidence of three former wives - Possibility of concoction - Whether misdirections and inadequate directions given in relation to evidence of former wives - Admissibility of evidence of a third party and whether probative - Admissibility of magazine to show knowledge of complainant of sexual matters - Admissibility of evidence of discharge of firearm to show propensity to act on impulse - Admissibility of finding of "not guilty" on sexual assault charges brought against complainant’s father - Admissibility of certain specialist gynaecological evidence - Whether rejection of any or all of this evidence led to a miscarriage of justice - Whether probative value outweighed prejudicial effect

SOLICITORS - not holding practising certificate - holding out to be solicitor and acting as solicitor - contraventions of Pt 3A Legal Profession Act 1987 - whether because of interventions in hearing and findings and reasons trial was unfair - whether Jones v Dunkel inference open - whether contraventions established.

Sentence - Sexual assault in circumstances of aggravation (Crimes Act, s61M) - No question of principle.

Sentence; contempt of court; accomplice already sentenced; attempt to assist co-offender; refusal to answer questions at trial

Criminal Law - sentencing - manslaughter by unlawful and dangerous act.

NEGLIGENCE - Duty of care to whom - Aborigines Welfare Board - Common Law duty of care to protect promote and maintain child placed in its control by mother - Whether a duty of care owed to plaintiff - Novel case - Test for recognition of duty - Whether such should be recognised - No duty of care - No breach of duty - No causation;; STATUTE - Aborigines Protection Act 1909-1943 - Whether giving rise to a private right of action - Private right of action not created; EQUITY - Fiduciary relationship - Whether fiduciary relationship between child ("ward") and the Aborigines Welfare Board under the Aborigines Protection Act - Nature of relationship scope and content of duty assuming a fiduciary relationship - Whether duty of care to prevent personal injury - Whether breach of fiduciary duty - Causation - Laches, prejudice and delay as "bars" to equitable relief if entitlement established; DAMAGES - No entitlement to damages - Difficulties in any compulation - Damages highly speculative - Assessment only done contingently to assist in event of Appeal and having regard to age and general ill health of plaintiff - No entitlement to aggravatory or exemplary damages; EXPERT EVIDENCE -Nature of such - Assessment and acceptance of such - Qualifications; EVIDENCE - State of Knowledge; LAW REFORM - Whether a claim for breach of fiduciary duty (if available) arising from the same facts and circumstances relied upon to support a common law cause of action should be subject to the provisions of the Limitation Act.

Valuation of shares; Buy-back of shares of members of a company by other members; Method of valuation; Valuation not an exact science; Expert evidence.

ASSOCIATIONS - incorporated associations - whether intention was to incorporate an existing association or incorporate a new association - validity of general meeting of incorporated association - determination of present members of management committee of association

CRIMINAL LAW - appeal against conviction and sentence - EVIDENCE - admissibility of evidence - exercise of right to silence and refusal to give blood sample - appropriate directions given by trial judge during trial and in summing up

Criminal Law; Incorrect refusal of adjournment to locate witness Crown intended calling; Correct construction of s424A of Crimes Act