Cases and authorities

Severity of sentence - larceny of motor vehicles - malicious damage to property - obtaining money by deception - accessory after fact to thefts of motor vehicles - possession of implements capable of being used in motor vehicle theft - Discount for assistance.

Criminal law and procedure; appeal on sentence; supply of prohibited drugs; possession of prohibited drugs; term of imprisonment not manifestly excessive; hardship to applicant's family; leave to appeal granted; appeal dismissed.

PRACTICE & PROCEDURE - AMENDED STATEMENT OF CLAIM - ADDITION OF DEFENDANTS - WHETHER OUT OF TIME - OPERATION OF S52 OF LIMITATION ACT 1969 - POSTPONEMENT OF BAR DUE TO DISABILITY

N/A

Claim for damages for the loss of part of a consignment of computer parts shipped by air from the USA to Australia - place of loss - protection of exemption clauses contained in commercial agreements - disclaimer of liability for loss - Warsaw Convention - whether 'direct flights' and 'quality of service' representations were contractually enforceable or gave rise to a contravention for misleading or deceptive conduct under s 52 Trade Practices Act, 1974 (Cth) - negligence - whether third respondent, as a sub-contractor or agent of the second respondent, is entitled to escape or limit liabilty by relying on limitation clauses contained in the third respondent's general trading conditions or its own air waybill

ADMINISTRATIVE LAW; PROCEDURAL FAIRNESS; LEGAL SERVICES COMMISSIONER'S DECISION VOID; REQUIREMENT TO SUPPLY COPY OF COMPLAINT; CERTIORARI; PROHIBITION

PRACTICE & PROCEDURE - application for stay of execution of judgment - where application for appeal pending - consequence of execution of judgment may render an appeal nugatory

Contract; unaccepted repudiation; damages for breach of contract; damages in lieu of specific performance; assessment of damages; discount for vicissitudes where contract subject to contingencies; discounting generally.

Banker and Customer - Credit Facility Agreement - Suspicion by Bank of insolvency of company within corporate group of borrower customers - Banks concern to avoid allowing further drawings on current accounts arguably capable of being attacked as preferential payments - Bank without notice, freezing customers current banking accounts and determining that no further drawings would be permitted on current accounts - Whether Banks conduct constitutes breach of facility - Implied term of facility that Bank give reasonable notice in event that it determines to vary its customary mode of providing general banking services, and in particular a finance facility, to customer group - Obligation to give reasonable notice is part of general contract basic to all banker customer transactions - Obligation extends to any variations to accounts to be operated with Bank; to any requirement that overdraft facilities in place in relation to current accounts would no longer be permitted to be drawn upon; to any requirement that customer open new accounts - Obligation to give reasonable notice of variations implicitly embraces correlative obligation to be precise and accurate in communicating what the variations involve and of effect, if any, of variations on the continued operations of the facility - Tampering by Bank with mechanics of customers operations of a facility may vitally affect customers business relationships and other dealings - Special significance of precision in Banks mode of communicating to customer group what a new regime would entail and whether it involved any suggestion of restructuring or varying the facility or of holding the position while the Bank determined in what way to restrict or vary the facility - Special significance of directing such communications to the customer group at a level within the customers hierarchy commensurate with significance of Banks decision.; Banker and Customer - Credit Facility Agreement - Construction - Corporate group of borrowers - Events of default - Default by whom? - Duration of facility.; Banker and Customer - Credit Facility Agreement - Whether act of freezing and not permitting further drawings on customers current accounts amounts to termination or withdrawal of finance facility.; Banker and Customer - Credit Facility Agreement - Customer Group drawn to limit of facility - Alleged wrongful dishonour - Dishonour by Bank of cheques drawn on frozen current accounts continues notwithstanding that borrower group brings itself back within facility limit.; Banker and Customer - Credit Facility Agreement - Breach - Payment of cheques drawn on frozen current accounts and met from new accounts - Whether wrongful dishonour.; Contract - Banker and Customer - Suspicion by Bank of insolvency of company within corporate group of borrower customers - Banks concern to avoid allowing further drawings on current accounts arguably capable of being attacked as preferential payments - Bank without notice, freezing customers current banking accounts and determining that no further drawings would be permitted on current accounts - Whether Banks conduct constitutes breach of facility - Implied term of facility that Bank give reasonable notice in event that it determines to vary its customary mode of providing general banking services and in particular a finance facility to customer group - Obligation to give reasonable notice is part of general contract basic to all banker customer transactions.; Contract - Banker and Customer - Credit Facility Agreement - Construction - Corporate group of borrowers - Events of default - Default by whom? - Duration of facility.; Contract - Banker and Customer - Credit Facility Agreement - Whether act of freezing and not permitting further drawings on customers current accounts amounts to termination or withdrawal of finance facility.; Contract - Banker and Customer - Credit Facility Agreement - Customer Group drawn to limit of facility - Alleged wrongful dishonour - Dishonour by Bank of cheques drawn on frozen current accounts continues notwithstanding that borrower group brings itself back within facility limit.; Contract - Banker and Customer - - Credit Facility Agreement - Breach - Payment of cheques drawn on frozen current accounts and met from new accounts - Whether wrongful dishonour.; Defamation - Bank Statements bearing notation ‘in liq’ - Imputations that customer insolvent and that liquidator appointed to customer.; Limitation of Actions - Leave to amend to join additional plaintiffs - Representative parties - Courts power to grant leave to amend pursuant to Part 20 Rule 1 Supreme Court Rules - Courts power to add new parties to be exercised within the constraints and subject to the provisions of Part 8 Rule 11(3) Supreme Court Rules.; Locus Standi - First plaintiff member of corporate group of borrowers - All companies in group are parties to Credit Facility Agreement entered into with Bank - Interlocking network of securities to support group borrowings - Plaintiff is a promisee as is each of group borrowers in respect of Banks obligations to observe express and implied terms of facility agreement - Holding that Bank breached obligation imposed upon it by implid term of contract to give reasonable notice in event that it determined to vary its customary mode of providing finance facility carries with it entitlement in first plaintiff to recover in respect of loss or damage suffered by plaintiff by reason of banks breach of contract.; Practice and Procedure - Limitations - Leave to amend to join additional plaintiffs - representative parties - Courts power to grant leave to amend pursuant to Part 20 Rule 1 Supreme Court Rules - Courts power to add new parties to be exercised within the constraints and subject to the provisions of Part 8 Rule 11(3) Supreme Court Rules.

Application to strike out part of defence and cross-claim: unclean hands; abuse of process: Availability of s 246AA of the Corporations Law to majority shareholders.

Criminal Law - murder - defence of mental illness; Criminal law - trial by judge alone - reasons for verdict

Contract - construction of terms - implied term - criteria for implication of term - distinction between term to be implied and rationale for implication.

Joint tortfeasors - employer and sub contractor - negligence of both causing injury to employee - whether term should be implied in contract between employer and contractor creating duty of care by contractor to employee - if so whether breach of that term entitles employer to complete indemnity by contractor

Associations & Clubs [15]; Meetings for disciplinary purposes; Freedom of association; When court might restrain meeting; Flexibility of natural justice principles

PRACTICE & PROCEDURE - APPLICATION FOR SECURITY FOR COSTS - CIRCUMSTANCES WHERE APPROPRIATE - EVIDENCE OF LIKELY SUCCESS OF APPEAL

Motor vehicle accident; Verdict for defendant; Pedestrian hit by Government bus.

NEGLIGENCE - Duty of care - Motor vehicle accident - Car runs down pedestrian crossing street - Failure by driver to keep proper look-out - Whether pedestrian guilty of contributory negligence

PRACTICE & PROCEDURE - APPLICATION FOR STAY - CIRCUMSTANCES WHERE STAY APPROPRIATE - EVIDENCE OF LIKELY SUCCESS OF APPEAL

On application by Commissioner of Police to adjourn cross-examination of Messrs Angus, Bell and Woodhouse

PRINCIPAL & AGENT - Authority of agent to receive money on behalf of principal - Liability of principal in circumstances of case for misapplication of moneys held by principal without knowledge that moneys were being misapplied.

Damages - Motor vehicle accident - non-economic loss - whether abilty to lead normal life impaired - future economic loss cushion - future out-of-pocket expenses

Procedure [555]; Offer of compromise; De facto relationship proceedings; Offer made by defendant less than 14 days before hearing; Accepted on day of hearing; Less than $40,000 recovered; Whether court should otherwise order to prevent plaintiff having costs

PROCEDURE [5] - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Ordinary rule - Reasonable expectation of adverse decision - Previous decision of same question of law.

CRIMINAL LAW - Evidence; Sexual assault; Complaint; Not recent; CRIMINAL LAW - Summing-up; Sexual assault; Competing versions; Who to believe; EVIDENCE - Sexual assault; Complaint; Not recent

Motor vehicle accident; Personal injury; verdict for defendant; liability.

CONTRACT - Interpretation - Parol evidence - Written evidence - To add to terms of contract - Written contract - Scope and effect of writing - Whether writing complete contract

Conveyancing - misdescription of land on face of contract - misdescription of land on s.149 Certificate under Environmental Planning and Assessment Act - misdescription of title within s.127 Real Property Act.

See note re section 126 of the Administrative Tribunals Act re non publication of any identifying matter; Application for relief in the nature of prerogative relief; Supreme Court Act s 69; Availability of appellate review in Tribunal below; Case not appropriate for consideration by Supreme Court until after appellate procedure below followed out.

Motor Accidents Act; Assessment of Damages; No particular point of principle

ASSOCIATIONS AND CLUBS; Expulsion Suspension and Disqualification; Registered Club incorporated under Companies legislation; procedural challenges to validity of decision by Club Board to suspend for 3 months member (President and Board Member) on charge of prejudicial conduct (sexual harassment of staff member); on the facts it was found that there was procedural fairness and the suspension was valid; information given to the Board by two staff members in the member's absence which went beyond the Particulars was not of importance and there was no basis for finding that the decision was based on information outside the Charge.

LANDLORD and TENANT; termination of the tenancy; power to terminate by notice in writing in case of damage or destruction of Hotel building; opinion of lessor whether reconstruction undesirable; implied terms required reasonable consideration of opinion and reasonable period of notice; provision for arbitration in case of dispute deprived disputed termination of effect pending arbitration; lessors' purported termination and re-entry were not effective and lease continued in effect.

Sex Discrimination; liability of principal for conduct of agent; liability of incorporated golf club for conduct of its president; whether statute imposed onus on principal to prove conduct not authorised by it; whether findings of Equal Opportunity Tribunal involved error of law; Statutory construction; Anti-Discrimination Act, 1977, s 53(1)

NEGLIGENCE - truck rollover - whether excessive speed - whether excessive speed contributed to rollover; DAMAGES - injury in truck rollover - assessment of percentage of a most extreme case.

Application for Summary Judgment based on the construction of a one-off agreement.

Set aside process; stay of proceedings; inappropriate forum; exclusive jurisdiction clause

Family Provision; Claim by adult stepson; Whether plaintiff comes within paragraph (d) of definition of eligible person; Whether plaintiff was a member of a household of which deceased was a member; Whether plaintiff was dependent upon deceased; Events and circumstances occurring more than half a century ago; Inconsistent versions given by plaintiff; Plaintiff's evidence was unreliable; Limited contact between plaintiff and deceased during last forty-four years of deceased’s life; Factors warranting the making of the application; Very substantial gifts made to plaintiff by his late father; Obligation upon an applicant to place before the Court as fully and as frankly as possible all available information concerning his financial and material circumstances; Whether plaintiff has done so; Present needs of plaintiff ; Wish list presented by plaintiff

Extend limitation period; prejudice

NEGLIGENCE - Duty of care - School authority and pupil - Accident while on school outing - Non delegable duty - Extent of - Whether breach established; APPEAL - From District Court - When lies - When leave required

Negligence; Contributory negligence.

PLAINTIFF DECEASED; LEGAL REPRESENTATIVE OF ESTATE; PLACE WHERE CAUSE OF ACTION AROSE

Stated case; appeal from Local Court; whether findings supported offence under s 52 of the Trade Practices Act; magistrate drew on independent personal knowledge; damages assessed by reference to cost of total replacement; whether any error of law in findings and decision of magistrate

DEFAMATION - Imputations.

PROCEDURE [26] - Courts - Concurrent jurisdiction of different Courts - Transfer of proceedings under cross vesting legislation - Where appropriate in interests of justice - Where argument as to jurisdiction of Court in which proceedings maintained.