Cases and authorities

EVIDENCE; visual identification evidence; admissibility; reasonableness of holding identification parade; (Evidence Act 1995 (NSW) s 114)

LAND AND ENVIRONMENT COURT - preliminary question of law - 'res judicata' - whether childcare centre proposal within 4(B) Light Industrial zoning - appeal and leave application heard concurrently

DEFAMATION - whether statement of claim disclosed reasonable cause of action - whether incorrect name but correct ACN sufficient identification

Sentencing - murder - patricide - plea of guilty after initial concealment of involvement - drug problem - family breakdown following death of mother - special circumstances

Sentence - juvenile - s33(1)(e) Children (Criminal Proceedings) Act 1987

Coroner; inquest with open finding; whether concluded; whether coroner functus officio; fresh inquest; nature of jurisdiction; non-publicatin order

Criminal law; indecent assault; sexual intercourse with child under 16; faulty direction as to standard and onus of proof; verdicts not reasonably open

Criminal Law - sentence - sexual assault - Crimes Act 1900 s 76 - cumulative sentences

Motor vehicle accident; no point of principle.

Summons for leave to appeal

PRACTICE and PROCEDURE — Leave refused to amend defence to add limitation defence — Limitation defence overlooked until close of oral addresses — Governing principles — Courts too lenient? — Prejudice to other party not adequately compensable by indemnity for costs — Relevance of public interest and interests of other litigants — Woolf Rules.

Conceal serious offence - sentence - plea of guilty - assistance offered - lengthy delay in charging - plea and assistance timely - subjective circumstances - recognisance imposed.

Dangerous driving occasioning death; Appeal against sentence;; discretion of trial judge to award lenient sentence

CRIMINAL LAW; malicious wounding; Crown appeal against sentence; not manifestly inadequate; appeal dismissed.

Medical negligence; Damages; Value of chance

Sentencing - whether custodial sentence appropriate in circumstances.

Practice and procedure - slip rule - procedure where recollections differ as to events at hearing - form of orders for assessment by Master - costs - jurisdiction of District Court

CORPORATIONS - insolvent transactions - unfair preferences - meaning of 'transaction' - whether company is a party to a transaction

LANDLORD AND TENANT - RETAIL LEASES ACT. Prospective tenant spends $30,000 on preparation of shop, and then goes into possession and starts paying rent, in expectation of being granted a lease for not less than 6 months. Three months later, in June 1998, tenant and landlord execute a lease for 6 months with a 6 months option, commencing on 1st July, and solicitor gives a certificate under s.16 of the Retail Leases Act. Tenant claims benefit of 5 year lease. HELD that, prior to giving of the certificate, a lease had arisen to which the Retail Leases Act applied, so that its term was extended to 5 years; and that, while such a lease could be surrendered, the execution of the 6 month lease neither effected such a surrender nor displaced the pre-existing statute-extended lease.

CRIMINAL LAW & PROCEDURE - application for leave to appeal under Criminal Appeal Act 1912, s 5F - finding of fact below not indigent - no sufficient doubt and interests of justice not otherwise require intervention - application dismissed.

CRIMINAL LAW - picture identification evidence, whether error in not excluding - whether verdict unsafe and unsatisfactory.

WORKERS COMPENSATION - s 106E(1) - can not commence court proceedings until 12 weeks after a claim for compensation is duly made - whether mandatory.

Supreme Court - interlocutory orders - Mareva orders - ancillary disclosure order - basis of jurisdiction - discovery and interrogatories as alternatives - evidence - privilege against self-incrimination - Equity Division practice on disclosure orders - stay of proceedings

CRIMINAL PRACTICE & PROCEDURE; Application under s38 Evidence Act 1996; Leave sought to cross examine Crown witness; Unfavourable witness

GREAT - jurisdiction - s 81C Police Service Act - applicant must be "elligible for appointment" to position - appellants unsuccessful in assessment process - success a qualification determined for the position - whether appellants eligible for appointment - whether assessment by comparative merit or of achieving a standard - (by majority) the latter - appellants not eligible - no jurisdiction. Janson v Scanlon (1995) 63 IR 100 referred to.

Imputations - capacity - form - hypocrisy

Family Provision.; Application by a defacto partner of deceased. Substantial disposition of assets by defendant to defeat plaintiff's claim. Order made to file affidavit setting out defendant's property.

CORPORATIONS LAW — Breach of enforceable undertaking given to ASIC — Injunction restraining giving independent advice without a licence — Compensatory payment by First Defendant for breach of undertaking with respect to loss or damage suffered — Freezing assets of First Defendant.; COSTS — Indemnity costs awarded to Plaintiff in absence of Defendant.

Family Provision; Claim by adult son against estate of his mother; Plainitff worked without pay in the family business, and received no benefit under the will of his father; No other eligible persons; Plaintiff owns or controls assets totalling almost $8 million, of which the cash proportion is relatively small; Plainitff and his wife maintain a modest lifestyle; Absence of any need; Failure to satisfy first stage in two-stage process described in Singer v Berghouse; Purpose of family provision legislation: Blore v Lang

Criminal Law - indecent assault - ss 61D(1), 61E(1) & 81 Crimes Act 1900 (NSW) - leave to appeal granted - appeal allowed - resentenced

Criminal Law - sentencing - s 97 Crimes Act 1900

Criminal Law - sentencing - s 52A Crimes Act

Appeal against severity of sentence - demand money with menaces - question of parity between co-offenders - deterrent element of importance in protection rackets

Extension of time to appeal; prejudice; onus of proof; discretion of court to grant extension.

CORPORATIONS - director - removal - purported removal of one of two directors by the other director at a meeting where she claimed to act in two capacities, first as herself and secondly under power of attorney for the other - removal was ineffective for (1) non-service in fact of the default notice which would have given rise to power of attorney (2) no notice of directors' meeting (3) attendance and voting at directors' meeting was not an act authorised by PA (4) Attorney under power cannot represent a director and provisions of Articles for alternate directors not complied with (5) one director in two capacities cannot form quorum of 2 (6) lack of good faith in purported exercise of power (7) lack of power of directors to remove a director by resolution, as power conferred by Articles on the company.

Trustees. Application for Judicial Advice. Voluntary unincorporated association for the purpose of conducting a sickness fund for its members. Fund ceases to operate and no express provision for dissolution. Held that assets should be distributed equally among all members at time fund ceases to operate.

LEGAL PROFESSION - confidential information - solicitors acted for companies and Husband in various business over four years - H & W were sole directors H & W divorced - dissention arose in management of the companies, W purportedly removed H as director and commenced proceedings against him for remedies relating to the companies' affairs - the solicitors acted for H in W's proceedings and W applied for injunction restraining H from retaining them - it was not shown that the solicitors had any confidential information which was relevant to the proceedings and was obtained while acting for the companies - it was not shown that there had been any ground for the Court to control the solicitors' acting on the retainer - proceedings dismissed.

Motor accident; negligence; contributory negligence; trial judge's erroneous conclusion that no accident occurred in circumstances in which such a finding was not open; no point of principle.

Motor vehicle accident; ss 48 and 82 of Motor Accidents Act 1988; dilatoriness; action commenced out of time; no point of principle.

NEGLIGENCE - Local council - Control and management of surf beach - Surfer struck by surfboard - Whether surfboard within prohibited area - Council's duty of care - Whether breach of duty - Whether breach causative of damage; JUDGMENTS AND ORDERS - Statement of reasons for decision - Inadequacy of reasons

EVIDENCE [52] - Admissibility - Hearsay - First hand hearsay - Notice requirements - Whether complied with - Dispensation with.

Application for declaration that the plaintiffs are entitled to compensation pursuant to a special condition in a Crown lease - Whether forest area set apart under the Crown Lands Consolidation Act 1913 and the Returned Soldiers Settlement Act 1916 were revoked by revocations under s30 of the Crown Lands Consolidation Act 1913 - Whether such a contractual right was abrogated by the 1989 amendments to the Forestry Act 1916 - Application to set aside determinations made by the Forestry Commission under s30E(3) of the Forestry Act 1916 on the basis that the Forestry Commission had misconstrued the requirements of the legislation - taken irrelevant matters into account - failed to take relevant matters into account and for manifest unreasonableness - Interpretation of s30E of the Forestry Act 1916 - "costs incurred" - "in connection with".

ACCOUNTS - appeal from Master on items in accounts where cross-defendant occupied flat building owned by bankrupt estate and collected rents - decision on facts - no important question of principle.

Misleading representations and reliance thereon; Lease by operation of law; Variation of rent for breach of Pt.5 of TP Act