Cases and authorities

Summary judgment; Plaintiff is administrator of estates of his parents and his brother; First defendant murdered parents and brother; Plaintiff seeks recovery of moneys and properties paid and transferred by his parents to defendants; Those payments and transfers are asserted to have been in consequence of undue influence, threats and blackmail by first defendant; Relief claimed is of an equitable nature; Application of equitable doctrine of tracing; Whether procedure for summary judgment is available; Effect of Supreme Court Act 1970, section 88; Whether there is a real issue of fact to be decided; Limited participation in present application allowed to administrator of intestate estate of first defendant.

EQUITY [340] - Equitable remedies - Mareva injunctions - Other matters - Principles on which granted - Secretive sale of property.

Practice. Summary dismissal. One of three causes of action propounded in Statement of Claim struck out. No matter of principle.

Corporations [187]; Administration; Application that liquidator become administrator; Principles involved

Defamation - Interlocutory application to file a third further amended statement of claim granted

CRIMINAL LAW [702] - Jurisdiction, practice and procedure - Stay of proceedings - Generally - Power of Court - Whether Supreme Court of NSW has power to lift or vary permanent stay.

Criminal Law - sexual offences - failure to complain - whether directions adequate; Criminal Law - sexual offences - two complainants neither of whom corroborated the other - whether Jones v Dunkel direction necessary; Criminal Law - multiple counts - whether necessary to instruct jury that they might take into account a reasonable doubt on one count in deciding any other count

Leave to appeal decision of costs assessor

Welfare - children - declaration of parentage - parentage testing procedure

Corporations [200]; Unit trust; Terminated pursuant to trust deed; How wound up; Equity [212]; Trusts; Winding up; How effected

FAMILY PROVISION - appeal - challenge to provision ordered for widow - whether home unit inadequate - whether capital lump sum to be ordered instead of annuity - whether quantum of annuity sufficient

COSTS - PROCEEDINGS TO REVIEW DECISION OF COSTS ASSESSOR - PRIMA FACIE IMMUNE FROM COSTS ORDERS

CONTEMPT OF COURT - NON-COMPLIANCE WITH COURT ORDER TO DEMOLISH HOUSE - APPROPRIATE PENALTY

Mental Health [5]; Confinement order; Procedures to be strictly followed; Written reasons must be given at or shortly after order made

LIQUOUR LAW - Caterer's Licence - Applicant employee of owner of premises.

Application by defendant for security for costs: Part 53 Rule 2(e) Supreme Court Rules; s1335 Corporations Law: Court considered reasonableness of quantum for security.

extension of time for costs application; interim award; no loss of entitlement to seek costs

Indemnity costs

CONSTITUTIONAL LAW - Constitution, s 116 - whether implied right of freedom of discussion of religious matters - PRACTICE & PROCEDURE - Amendment of pleadings - whether futile - PRACTICE & PROCEUDRE - Application to refer issues to Court of Appeal.

Crown appeal, inadequacy of minimum term of 4 yrs in total sentence of 9 yrs - kidnapping of 12 year old girl with serious sexual assaults involving some physical injury - undervalue of objective circumstances and public deterrence - overestimation of the significance of subjective features demonstrating manifest error in sentencing.

Criminal law - sentencing - assaulting and resisting police officers in the execution of their duty - whether irrelevant evidence taken into account.; Criminal law - sentencing - assaulting and resisting police officers in the execution of their duty - whether sentences imposed excessive.

Criminal Law - sentencing - whether sentence excessive

Criminal law; appeal; whether convictions unsafe and unsatisfactory.

Criminal law - charge of maliciously wound with intent to murder (S 27 Crimes Act, 1900) alternative charge maliciously wound with intent to do grievous bodily harm ( S 33 Crimes Act, 1900) - Judge sitting without jury - findings of not guilty of charges under Ss 27 and 33 but guilty of statutory alternative charge of malicious wounding pursuant to S 35 of the Crimes Act - failure of trial judge to refer to potential unreliability of complainant's evidence - warning warranted under S 165 of the Evidence Act, 1995 - failure to refer to principles of law concerning lies told by appellant - hence breach of S 33(2), S 33(3) of the Criminal Procedure Act, 1986 attracting the second limb of S 6(1) of the Criminal Appeal Act, 1912.

Criminal Law - sentencing - whether enough weight given to good prospects of rehabilitation

CRIMINAL LAW - appeals - appeal against conviction - murder and armed robbery.; CRIMINAL LAW - directions to jury - sufficiency of directions on identification evidence - whether trial judge’s directions were inaccurate or misleading, or failed sufficiently to identify weaknesses or inconsistencies in that evidence - dangers inherent in identification evidence generally. ; CRIMINAL LAW - directions to jury - refusal to participate in identification parade.; CRIMINAL LAW - directions to jury - evidence led by appellant of him being in gaol at a time of a possible earlier sighting.; CRIMINAL LAW - directions to jury - sufficiency of directions on potentially prejudicial answer to question by witness.; CRIMINAL LAW - verdicts - whether jury’s verdict should be set aside as unreasonable or not supported having regard to the evidence.; EVIDENCE - identification - warnings to be given.; EVIDENCE - admissibility - discretion to admit photographs of victim.

PRIVILEGE against self-incrimination; order as to assets disclosure; Mareva injunction; Evidence Act s128; Reid v Howard (1995) 184 CLR 1.

APPEAL - whether new point of law could be raised on appeal; EMPLOYMENT - reasonable remuneration for services rendered - Industrial Relations Act 1996 - ss 117-8 - whether deduction for board and lodging permissible; INDUSTRIAL LAW - Industrial Relations Act - whether employer entitled to deduct value of board and lodging from remuneration

Family Provision

Sentencing - juvenile offender - plea of guilty to manslaughter - knifing during street attack

Corporations [94][98]; Directors; Office vacated if insolvent; Meaning; When one director may act

Mental Health [3]; Guardianship; Victorian order; Recognition in NSW; What that entails; When revoked; Procedure [88]; Parties; Whether Tribunal may be sued by name

Criminal Law - Sentence - Murder - Prisoner shot his de facto wife after an argument - Provocation rejected by jury - MT 12 yrs; AT 4 yrs.

Family Provision; Claim by three children of first marriage of deceased; All plaintiffs were infants at commencement of proceedings; Deceased left entire estate to his second wife; Relevance of financial ability of mother of plaintiffs to support or maintain her children; Only significant asset of deceased was his interest in matrimonial home, of which he and his second wife were joint tenants; Claim against notional estate of deceased; Prescribed transaction constituted by failure of deceased to sever joint tenancy; Small notional estate; Competing claim of widow; Short marriage; Proceedings not commenced within time; Whether Court is precluded by section 16(3) of Family Provision Act 1982 from exercising the discretion to extend time vested in it by section 16(2).

Interrogatory - circulation - readership

Application by defendants to stay proceedings pursuant to Part 11 rule 8 and by the plaintiff for leave to proceed pursuant to Part 10 rule 2.; Necessity for plaintiff to establish jurisdictional nexus through Part 10 rule 1A.; Onus on the plaintiff: The News Corporation Limited v Lenfest Communications Inc (1996) 21 ASCR 552 and the cases therein cited applied.; "Tacking" of causes of action not permitted: W.F.M. Motors Pty Limited v Maydwell (Bryson J - 23 April 1993 - unreported; C.E. Heath Underwriting and Insurance (Australia) Pty Limited & Anor v Barden & Ors (Rolfe J - 19 October 1994 - unreported; Australian Iron and Steel v Jumbo Scheepvaart (1988) 14 NSWLR 507; Ramcorp Limited & Ors v DFC Financial Services Limited & Ors (Waddell CJinEq - 30 April 1990 - unreported).; C.E. Heath Underwriting and Insurance (Australia) Pty Limited & Anor v Barden & Ors and the cases referred to therein and News Corporation followed.; Onus on party where a "choice of court" provision is in a contract: Akai Pty Limited v People's Insurance Co Limited (1995) 126 FLR 204 and (1996) 188 CLR 418 followed. Policy considerations underlying this approach noted.; Construction point: construction of a commercial contract: Fitzgerald & Anor v Masters (1956) 95 CLR 420; Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99; Continental Bank NA v Aeakos Companie Naviera SA & Ors [1994] 1 WLR 528 followed.

EQUITY UNDUE INFLUENCE - gift of farm by parent to one of three sons - chain of events leading up to transfer - documents signed by all parties in office of one solicitor - claim built on document held to be a forgery; UNCONSCIONABLE TRANSACTION - claim founded on same facts - no special disadvantage - no opportunity by trickery or otherwise - no improper procuring of benefit

Medical negligence; failure to warn; haemorrhoidectomy performed in possible presence of ulcerative colitis; failure to warn of risk or increased risk of anal stenosis; duty on medical practitioners very high to give effect to policy requirement entitling competent people to make their own decisions about their own lives.

Negligence; duty of care; breach of duty; fall on wet staircase; suitability of stair surface; unsuspected defect.