Cases and authorities

MISREPRESENTATION; negligent advice; loan agreement; misleading and deceptive conduct; damage; s52 Trade Practices Act ; BREACH OF DUTY OF CARE; whether breach of fiduciary duty; claim for equitable damages; cross-claim; APPREHENSION OF BIAS; waiver; alleged failure to disclose; judge’s customer relationship with bank; wife’s shareholding; whether direct pecuniary interest in outcome of proceedings; scope of pecuniary interest disqualification

PERSONAL INJURY; motor vehicle accident; injury to foetus; perfusion failure; cerebral palsy; EXPERT EVIDENCE; evaluation of expert witnesses; relevance of demeanour when experts in conflict; scientific language and method vs. legal language and method.; CAUSATION; trial judge distracted by intermediate factual issues; importance of consideration of all material circumstances; commonsense approach; causation in this case not "susceptible of scientific demonstration or proof"; application of non-scientific legal test: the balance of probabilities.

Corporations Law. Application to set aside statutory demand. Contract. Whether contract may be made to have retrospective operation and whether in the circumstances of this case that occurred.

Family Provision; Claim by adult daughter; Discretionary trust created by will of testator; Benefit to plaintiff under discretionary trust can be regarded as fairly illusory; Present needs of plaintiff; Competing claims of other beneficiaries under discretionary trust; Uncertainty as to whether a significant asset can be recovered by executor.

NEGLIGENCE; child injured in fall from playground equipment in school grounds during non-school hours; effect of head injury on child with pre-accident intellectual deficits; residual earning capacity.

Appeal brought pursuant to s 208L of the Legal Profession Act 1987; no matter of law arising in the proceedings to determine the application for assessment of costs.

Inadequate sentences for drug offences - supplies to Police undercover operatives - discount for assistance - family hardship - deterrence - parity.

CRIMINAL LAW; interlocutory order; special arrangements for jury; prevention of fair trial; CRIMINAL LAW; interlocutory order; proceedings to be held in camera; public interest in open proceedings; CRIMINAL LAW; interlocutory judgment; stay of proceedings; effect of publicity on fair trial

JUDICIAL REVIEW - DECISION OF DISTRICT COURT JUDGE NOT TO GRANT APPREHENDED VIOLENCE ORDER - CRIMES ACT 1900 (NSW) - s562B(1) - s562GA - WHETHER APPREHENSION OF PERSONAL VIOLENCE REASONABLE AFTER SIGNIFICANT LAPSE OF TIME WHEN DEFENDANT HAD MOVED

EVIDENCE ACT - s63 (2) - maker of statement not available - no notice given that statement was to be tendered - s67 (4) - discretion of Court to admit statement - admitted with no reasons given - whether in error

Personal injury; quantum appeal in relation to damages for future economic loss; whether absence of evidence to support award made; amount within permissible range.

Defamation; Client - legal privilege

Case involving consideration of a dispute in respect of a one-off contract situation; Aggravated and exemplary damages. Whether payable in respect of damages for breach of contract.; McGregor on Damages (16th Edition) (1997) para 442; Halsbury's Laws of Australia (Volume 6) para 110-11060; Butler v Fairclough & Anor (1917) 23 CLR 78; Addis v Gramophone Company Limited [1909] AC 488; Flamingo Park Pty Limited v Dolly Dolly Cration Pty Limited & Ors (1986) 65 ALR 500; Gray v Motor Accident Commission (1998) 73 ALJR 45 applied.

Extension of time to file statement of claim

TRUSTS and TRUSTEES - trustees sold land which was trust property in one line with land which they owned beneficially: consolidating two parcels enhanced their value - trustees were held accountable for the proceeds in the same proportion as the value of each lot separately - it was not appropriate to attribute all enhancement to the trust property - where trustees allowed one trustee to occupy another trust property rent free for over 8 years after existence of resulting trust had been declared by the Court they were ordered to account to trust for rental value - trustees for sale of that trust property were appointed. Issues of valuation on differing expert evidence.

Criminal law - proceeds of crime - forfeiture after conviction - meaning of conviction.

Constructive trust asserted by de facto widower; Family Provision; Claims by de facto widower and adult son; Infant beneficiary (great-granddaughter of testator); Various property transactions by testator; Asserted contributions by each plaintiff to acquisition and improvement of various properties; Considerable financial and material assistance given by plaintiff to her adult son

Defamation; Imputations - whether arise

CRIMINAL LAW - appeal against conviction - whether verdict should be set aside on ground that it was unreasonable or could not be supported having regard to the evidence - matters taken into account - whether verdict of acquittal should be entered in lieu.

CRIMINAL LAW - sentence to commence on specified date; bail pending appeal; "at liberty on bail (pending the determination of his or her appeal" Criminal Appeal Act 1912 (NSW) s18(2)

Murder - Defence of mental illness - special verdict - order for detention.

FELONY MURDER - De Simoni principle - robbery whilst in company - infliction of grievous bodily harm - circumstance of aggravation - victim murdered with rock by two co-offenders - appeal against sentence - whether sentence was manifestly excessive - proportionality of sentences imposed - objective gravity of crime - guilty plea - assistance to authorities - special circumstances of co-offenders - Aboriginality - youth - intellectual disability - deprived socio-economic background - weight to be given to special circumstances - prospects of rehabilitation

Application for production of documents from DPP and Commissioner of Police; Legitimate forensic purpose (R v Saleam (1989) 15 NSWLR 14) applied ; Exclusion of prosecution evidence on public policy grounds (R v Ridgeway (1995) 184 CLR 19) ; "On the cards" test (Alister v R (1984) 154 CLR 404 not satisfied.

Defamation; Whether permissible for either party to play tape of matter complained of more than once

Consumer Claims Tribunals Act 1987; Denial of natural justice

CRIMINAL LAW; Practice & Procedure; Murder; Intoxication; Provocation; Diminished responsibility; Sentence

Land cumpulsorily acquired from the appellant by the respondent to enable rock anchors to be secured into the stratum of land the subject of an easement - whether land compulsorily acquired consists only of an easement, or right to use land, under the surface for construction and maintenance within the meaning of s 62(1) of the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) - construction of s 62(1) - nature of interest in land acquired by the respondent - whether right to have soil remain undisturbed is separate from any right to construct and maintain rock anchors - whether grant wholly deprived the appellant of its property rights in the land - profit `a prendre - whether rights in grant amount to a covenant

Costs argument

Children; child care proceedings in Children's Court; restrictions on naming child to whom proceedings relate; statutory offence; elements of offence; whether guilty knowledge such an element; statutory construction; Children (Care and Protection) Act, 1986, s 68

Corporations [85]; Prescribed interests; Investment of $1 million; Whether exempt from Corporations Law; Equity [35]; Fiduciary; X owed fiduciary duties to Y and Z; Preferred Z over Y; Z obtained large amount of Y's money; Whether Y bound to restore; Procedure [788]; Money counts; Money had and received; Scope; Restitution [5]; Recovery of money; Extent of defence of change of position; Taxes & Duties [148]; Deductions; Investment in Australian films; Prerequisites for deduction; Trade Practices [141]; Accessory liability; Acts on behalf of others

CRIMINAL LAW; Tick infested horses brought into New South Wales; introduction contrary to Stock Diseases Act 1923; determination of appropriate penalties.

Murder - Sentence - Life Sentence - Re-determination.

CRIMINAL LAW; MURDER; SENTENCING; APPLICATION FOR DETERMINATION OF MINIMUM TERM AND ADDITIONAL TERM; WHETHER SENTENCE WAS EXCESSIVE

WORKERS COMPENSATION - safe system of work - whether hearing loss attributable to noise.

RESTITUTION - repayment of judgment debts and costs - Supreme Court Rules Pt 51 AA r 18 - whether power to make restitutionary orders should be exercised when new trial pending

APPEAL; decision as to matter of law arising in the proceedings to determine the application for assessment; reasons.

Coroner's Court of NSW -; whether bound by the Evidence Act 1995; privilege against self-incrimination; whether certificate of immunity can be given by Coroner

CONTRACTS FEE AGREEMENT - inconsistency of provisions - ambiguity as to party - whether subsidiary or parent company was lessee; - promise of fee contingent on execution of lease - whether contingency fulfilled - exact compliance required - tenancy at will not exact compliance - contingency not fulfilled - decision on constriction of particular documents.

Application for restraining order against infringement of copyright; s32 of Copyright Act (Cth) 1968: Literary work. Originality in compilation of Boating Directory.

Proceeds of crime; forfeiture proceedings; assets forfeiture order made; relief against forfeiture; application for leave to apply; time for making such application; Criminal Assets Recovery Act, 1990, s.26

CAVEAT — Application for extension of caveat where caveator had not carried on farming operations on the property since 1995 and Defendant had (or purported to) exercised its power of sale — Alleged improper dealing.

Succession [164]; Wills; Rectification; Mathematical miscalculation of shares; Principles to be applied