Cases and authorities

Criminal Law - sentencing - dangerous driving causing death - Crimes Act 1900 s 52A

Criminal Law - sentencing - assistance to police Crimes Act 1900 s 114(1)(a) - armed with intent to rob - s 442B

Costs

Corporation - provisional liquidation - application for interlocutory injunction - balance of convenience - preservation of priority of Australian liabilities under s 116 of Insurance Act 1973 (Cth) - undertaking as to damages - limited undertaking by corporation - inadequate protection to defendants - limited undertaking by provisional liquidator gives better protection - provisional liquidator's statutory priority and equitable lien to recover expenses

Family Provision; Claim by adult daughter; Plaintiff is only eligible person; Plaintiff's sole income is disability pension; Conduct disentitling; Relationship between plaintiff and deceased; Complaints made by deceased; Whether complaints have been substantiated; Effect of such complaints; Previous will named plaintiff as sole executor and sole beneficiary; Competing claims upon bounty of deceased; Need of plaintiff is for accommodation; House property must be sold to meet costs of present proceedings; Appropriate order to be made for plaintiff.

Judicial Review - decision of Chief Mining Warden - interpretation of s 62(1)(c) Mining Act 1992

INTEREST - Supreme Court Act s 94 - whether plaintiffs' delay in prosecuting proceedings - whether no interest for period of delay: Bennett v Jones (1977) 2 NSWLR 355 and Perri v Flavell (No 2) (NSWCA, 20 September 1995, unreported) referred to. COSTS - follow event - but can make other order if successful party failed on dominant or separable issues - whether other order: Cretazzo v Lombardi (1975) 13 SASR 4; Hughes v Western Australian Cricket Association (1986) ATPR 40-748; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Waters v P C Henderson (Australia) Pty Ltd (NSWCA, 6 July 1997, unreported); Lenning v Alexander Proudfood Company World Headquarters (NSWCA, 22 April 1991) and Rosniak v Government Insurance Office (1997) 41 NSWLR 608 referred to. CROSS-CLAIMS - leave to file - after reasons published - whether prospect of Anshun estoppel if not filed - objective of cross-claim procedure - new cross-defendants not bound by findings and conclusions in reasons - delay and potential for changed or inconsisent findings and conclusions - whether leave: Port of Melbourne Authority v Anshun (1981) 147 CLR 589; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; Rahme v Commonwealth Bank of Australia (NSWCA, 20 December 1991, unreported); Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356; Barclays Bank v Tom (1923) 1 KB 221; Standen v G H Varley Ltd (1956) 56 SR 346; Godfrey v The Nominal Defendant (1963) 63 SR 412; Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5, and Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 considered. Astley v Austrust Ltd (1999) HCA 6; Ellesmere Brewery Co v Cooper (1896) 1 QB 75; Street v Retravision (NSW) Pty Ltd (1995) 135 ALR 168; Bialkower v Acohs Pty Ltd (1998) 154 ALR 534; Bains Harding Construction & Roofing (Aust) Pty Ltd v McCredie Richmond & Partners Pty Ltd (1988) 13 NSWLR 437; Arthur Young & Co v WA Chip & Pulp Co Pty Ltd (1989) WAR 100 and Smith v New South Wales Bar Association (1992) 176 CLR 256 referred to.

Personal Injury; application for order to strike out statement of claim for want of prosecution dismissed; plaintiff in default in complying with orders; plaintiff failing to prosecute with due despatch; prejudice to parties evaluated; justice in refusing to make order; future conduct of matter subject to strict directions.

LAND AND ENVIRONMENT COURT - Class 3 - compulsory acquisition of land - Land Acquisition (Just Terms Compensation) Act 1991 - minimal residential subdivision - (implied) rejection of Council's valuation - investigation by trial judge of hypothetical value of subject land - whether appropriate - valuation principle - cross-appeal - Pointe Gourde principle

AMENDMENTS TO DISTRICT COURT ACT - retrospective legislation - whether leave to appeal required or appeal as of right

Remitter to District Court for new trial limited to damages - trial Judge considers issues of liability - no damages awarded - appeal - new trial ordered

EVIDENCE - Admissibility - Hearsay - Exception: criminal proceedings where maker not available - Statements made by deceased to friend - Whether based on what he saw, heard or otherwise perceived - Whether first hand hearsay or more remote.

CONTRACT - Subcontract to perform earthworks for the construction of water filtration plant - Plaintiff tenderer invited to prepare a Target Guaranteed Maximum Price (TGMP) proposal and to participate in design development process - TGMP if acceptable to be confirmed as a lump sum Guaranteed Maximum Price (GMP) - Plaintiff accepts TGMP of $16.7M on 17 November 1993 - GMP contract for $16.7M executed 18 May 1994 - Whether plaintiff to bear risk of design development up to and/or after finalisation of GMP - Whether agreement entered into as at 17 November 1993 or as at 18 May 1994; CONTRACT - Construction - 'Variations' clause - 'Design Development' clause - Whether clause dealing with risk of design development to be read as relating to design development variations 'within' or 'without' scope of works.; TRADE PRACTICES - Misleading or deceptive conduct - Whether duty to disclose terms of contract where they differ from the pro forma contract included with invitation to tender - Silence as misleading or deceptive conduct; TRADE PRACTICES - Remedies - Variation - Rescission - Rectification; NEGLIGENCE - Partnering agreement - Relationship of trust and confidence - Whether defendant negligent in circumstances giving rise to execution of Subcontract - whether defendant required to draw plaintiff's attention to terms of Subcontract proferred for exeuction including scope of works to be included in Subcontract - Importance of treating a formal contract particularly in a commercial context as the final and full expression of agreement between the parties ; CONTRACT - Rescission - Rectification - Unilateral mistake - Whether mistaken belief of plaintiff that scope of works fixed at November 1993 agreement - Whether mistaken belief of plaintiff as to duration of period when it was exposed to risk of design development - Whether defendant aware of the plaintiff's mistake - Whether unconscionable for the defendant to insist on the terms of the contract - Carelessness of the plaintiff in failing to read the contract - Whether negligent misstatement; ESTOPPEL - Whether the defendant estopped from insisting on the terms of the contract.

Practice and procedure - notice to produce - subpoena - appeal from appellate decision of Master - application of Pt 23 r 3 and Pt 36 r 16 of Supreme Court Rules - standing of third party to oppose notice to produce or subpoena - Pt 37 r 8 - not "too wide" .

CRIMINAL LAW - Application for change of venue - Whether a "fair or unprejudiced trial cannot otherwise be had" - Publicity on television and in print media - Whether matters likely to come to jury’s attention in any event - whether warning to jury to disregard media sufficient; CRIMINAL LAW - Co-offenders - Application for separate trials - Whether holding joint trial would cause "positive injustice" - Consideration of principles enunciated by Hunt J in Middis & Ors (NSWSC, unreported, 27 March 1991) - Whether evidence against one accused is significantly weaker and/or different from evidence against other accused.

Wills. Mutual wills. Whether there existed sufficient facts to imply a condition that the wills would not be revoked without notice. Held in the circumstances that the condition should not be implied.

Criminal Law - sentencing - robbery in company

Attorney-General's reference - further appeal - nature of, leave not necessary - appeal for error of fact or law below - admissions - discretion to reject - relevance of conduct of trial - former law and practice - discretion to reject does not relate to dispute as to making - allegation of police conspiracy - proper directions - general evidence of police corruption - evidence of dishonesty of individual - fresh evidence - materiality and cogency - relevance of remoteness as affecting probative value - insufficiency of evidence - unadopted admissions - advantages of jury.

Crown appeal; sentence manifesty inadequate; robbery in company

Crown appeal; Dangerous driving causing death; Home detention

EVIDENCE - client legal privilege - inspection of documents produced on call - claim of client legal privilege was decided by applying Evidence Act 1995 (NSW) s.118 on the authority of Akins v Abigroup - production on call during the trial was ancillary to adduction of evidence, not adduction of evidence - Akins was followed as binding authority - decision of CCA in R v Young was not binding - the binding effect of decisions is produced by the power to hear appeals.

CORPORATIONS — One man company when articles required two directors — Administrator invalidly appointed by one director resolution — Appointment nullity — Subsequent winding-up deemed to commence before invalid appointment of administrator, namely on date application earlier made to wind-up company — Relation back period for insolvent transactions therefore calculated by reference to date of winding-up application — No remedial order available under s1322 or s447A.

Appeal against conviction whether Jones v Dunkel direction should have been given against the accused or the Crown or at all.

CRIMINAL LAW - sentencing - whether offender entitled to credit for time in custody pending trial, bail refused, notwithstanding concurrently serving a sentence for another conviction later quashed.

WORKERS COMPENSATION - appeal from Commissioner to judge of Compensation Court - finding of work being executed (s 20 of Act) - error of law - primary facts required different finding (Hope v Bathurst City Council (1980) 144 CLR 1) - finding of who employed worker - error of law - not obliged to find as did - judge correct to hold Commissioner erred in law - judge then found who employed worker - appeal to judge was only on point of law - finding not only possible result - should have remitted for further hearing.

DEFAMATION - Costs.

Appeal against decision of costs assessor

Tort - conversion - damages - conversion of steel - goods specially manufactured or specially acquired for specific use - effect of change in intended use of goods by plaintiff - whether change occurred prior to conversion - "value" of goods - assessment of damages where accurate calculation impossible or inappropriate.

Drug importation; Insufficient evidence that appellant "knowingly concerned" and strong defence evidence; Jury verdict constituted miscarriage of justice

NEGLIGENCE - Work Injury - Unsafe System - Contributory negligence - No question of principle

INTERPRETATION OF INSTRUMENTS - Extrinsic evidence - Course of negotiations - Whether admissible; LANDLORD AND TENANT - Lease - Rent - Rent review clause - Interpretation of - Extrinsic evidence - Course of negotiations - Whether admissible

Costs - settlement offer - no question of principle

APPEAL - Error of law - Jurisdiction of Government and Related Employees Appeal Tribunal - Construction and interpretation of s4 and s20(b) of the Government and Related Employees Appeal Tribunal Act - Meaning of "employee", "employer" and "in the service of the Crown" in the Act

Credit Act 1984 - contravention of s36, 8586, 86A - minor error - jurisdiction of Tribunal; Custom Credit Corporation v Gray 1992 1 VR 840 not followed; Contrade Finance Ltd v Senes 1963) 63 SR(BNSW) 141 applied; Decisions in Avco Financial Services Ltd v Abschinski (1994) 2 VR 659; General Motors Acceptance Corp Australia v Morris & Ors (1995 ASC 56-316); Westpac Banking Corporation v Donald-Murrell (1992) 2 VR 417; Canham & Ors v Australian Guarantee Corporation Ltd (1993) 3`1 NSWLR 246; Australian Guarantee Corporation v Roberts & Anor (1989 asc 55-950) overruled.

EVIDENCE - Pre-trial procedures - Memorandum discovered in list of documents referring to witness statements protected by client legal privilege - Derivative application of the Evidence Act 1995 to pre-trial procedures - s126 Evidence Act 1995 - Challenge to correctness of decision in Akins v Abigroup (1998) 43 NSWLR 539 - Evidence Act made applicable by Part 24 of Supreme Court Rules

PROCEDURE [105] - Supreme Court - NSW - Procedure under SCR - Expert report tendered although not served within time limited by directions - No incurable prejudice.

CONTRACTS - leases - agreement to enter into lease - agreement alleged by exchange of faxes - whether binding agreement in absence of formal documentation - whether if binding agreement the agreement was abandoned - whether if otherwise binding subject to condition precedent not fulfilled.

CONTRACT - formation; LESSOR and LESSEE - agreement to lease - formation - Lessor's agent by letter set out "the essential terms" of proposed new lease on expiry of current lease and asked for acceptance and discussion - letter said "Your acceptance and/or our discussion of this offer is subject to Owner approval and the provision of a formal Letter of Offer" - Lessee signed Acceptance at foot of letter - on construction of letter it was HELD that no enforceable agreement had been formed - decision on terms of a particular document.

CRIMINAL PRACTICE & PROCEDURE; Directions on the elements; Relating the elements to the evidence; Armed robbery; Joint criminal enterprise; Aiding and abetting; Sentence

EVIDENCE [226] - Witnesses - Re-examination - General principles - In respect of credit - Admissibility of statement of witness out of Court

INJUNCTIONS - Interlocutory injunction refused where plaintiff claimed that defendant was diverting a commercial opportunity from a joint venture in breach of fiduciary obligations - interlocutory injunction refused on discretionary decision after review of the parties' dealings.

PROCEDURE [101] - Supreme Court - NSW - Procedure under SCR - Amendment - Late application - No incurable prejudice.

MOTOR ACCIDENT - nervous shock - limitation on recovery of damages by Motor Accidents Act s 77 - claimant in school classroom when pedestrian struck on road outside - did not see or know of it until told - thereafter rendered first aid - not at scene of accident at the time it occurred - no damages.

WORKERS COMPENSATION; INDUSTRIAL DEAFNESS; whether amount awarded for provision of hearing aids should be reduced to reflect worker's rights to medical expenses under s 60 of the Workers Compensation Act 1987 (NSW)

District Court - MVA - student alighting from bus struck by motor vehicle - allowing bus passengers to alight in a potentially dangerous area - liability - duty of care of bus company and motor vehicle driver - whether breach of duty of care - reasonable foreseeability - apportionment of liability - contributory negligence - cross-appeal on quantum of damages

CORPORATIONS - management and administration - winding up - order sought pursuant to s447A of the Corporations Law for extension of the convening period for the calling of a meeting of creditors - no sound basis for such an extension - administrator to take proper care - deficient report to creditors - order made for winding up of company