Cases and authorities

Defamation

WILLS - TESTATORS FAMILY MAINTENANCE - plaintiff seeks order pursuant to s6(4) of the Testators and Family Maintenance and Guardianship of Infants Act 1916 to vary court orders as to her maintenance - power of the court to make an order for an increase in benefits - held no power

BANKRUPTCY - Appeal from Master's decision - question of whether property became divisible amongst creditors under s116 of the Bankruptcy Act or whether it was excluded from the operation of that section by s116(2)(g) as a right to damages for personal injury

TRUSTS - Superannuation Fund - Whether resolution of trustees conferred accrued rights in members

Listening Device Warrant; criminal offence dependent on invalid statute; effect on validity of warrant ; s 5F Criminal Appeal Act 1912; interlocutory judgment; nature of ruling that warrant valid

Plea of guilty; application to withdraw; charge under s 97(1) Crimes ; robbery in company; meaning of 'company'

COURT OF APPEAL - INTERLOCUTORY INJUNCTION

Negligence; Contributory Negligence; Finding of fact open to the trial judge

Professional misconduct and unsatisfactory professional conduct by medical practitioner; reckless, unethical and improper prescription of drugs of addiction; Medical Tribunal's orders so unreasonable as to demonstrate appealable error; removal from register of medical practitioners appropriate; Medical Practitioners Act 1992 ss36, 37 and 64(1).

NEGLIGENCE - findings of fact - no error shown - assessment of damages - mistake in stating period of partial incapacity - corrected by adding further figure and adjusting interest - otherwise no error shown; REASONS - whether sufficient - in circumstances, need only give broad outline and constituent facts, or essential ground or grounds on which decision rests - sufficient reasons given.

Limitation period; s52(4) Motor Accidents Act 1988; trial judge erred in carrying out a "balancing exercise" to determine whether leave should be granted; miscarriage of discretion; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

Corporations Law; guarantee by company directors; construction of terms of guarantee ; joint and several guarantee ; scope of charge in guarantee; Real Property; charge to secure payment of monies; joint tenancy

Equity [338]; Injunctions; Interlocutory injunctions; Balance of convenience; Application to restrain defendant saying that interview reported in plaintiff's magazine did not take place; Trial fixed for following week; No injunction in meantime; Principles of free speech and restraining defamatory words considered

CRIMINAL LAW - jurisdiction - application for inquiry into conviction under Part 13A Crimes Act 1900 s 474D - whether person convicted of summary offence can bring application - whether person convicted to offence under Federal lawcan bring application - whether power exercisable under s 474E(1) is picked up by S68 Judiciary Act in relation to federal offences.

Product liability; vehicle leaves road and collides with embankment; whether steering link fractured on road causing accident or as a result of collision with embankment; issue of fact; no question of principle involved.

Security for costs - time for lodgement

Sentencing; Dangerous driving causing grievous bodily harm; Jurisic followed.

Criminal law - sexual assault - judge only trial - nature of appeal - "unsafe and unsatisfactory" - questions of credibility - nature and extent of judge's reasons - contrast with comments to a jury - allegation of judicial bias or prejudice - when inappropriate.

CONTRACT - breach - construction of deed of release - whether release covered all causes of action in statement of claim

On procedure regarding plaintiff's claim for privilege

NEGLIGENCE; solicitor and client; Alternative rights of client to sue at common law and to recover workers' compensation benefits; limit to common law damages insurance cover under statutory workers' compensation policy; whether appropriate advice given; whether client would have acted on further advice; responsibility for delay.; DAMAGES; assessment by reference to delay.

Contracts [6]; Uncertain promises; Restrictive covenant; Verbal contract; Covenant never precisely formulated; Not a term of the contract; Trade & Commerce [22]; Restraint of trade; Medical centre and doctor; No contract of employment; Good restriction to protect centre's goodwill; Whillans v Ashcoast Pty Ltd (Q'ld C/A 6.3.1998) followed

EQUITY - Declaratory Relief - challenge to pre-selection process of ALP - rules not complied with - discretion as to granting of declaration

Plaintiff's application to be informed of defendant's subpoenas

On Defendant's Notice of Motion (26.2.1999) to set aside four Notices to Produce served by Plaintiff

CONTRACTS - Repudiation - Affirmation -RESTRAINT OF TRADE. Employee, bound by three-year contract and one-year restraint against completion after termination, writes letter to employer which asks for termination of his contract, but also suggests the terminations is a fait accompli. Employer and employee arrange a day two weeks later as employee's last day at work, on which day employee is paid ordinary pay, holiday pay, and long service leave calculated to that day, plus three months' 'termination pay'. HELD that letter was not a repudiation; that in any event employer had manifested an intention that the agreement end consensually and not by termination for breach; and that the employment terminated on the employee's last day at work, not three months later.; Western Excavating (ECC) v. Sharp (1978) 1 CR 222; Mason Gray Strange NSW V. Eisdell, Powell, J. SCNSW, 22/2/89; Siagian v. Sanel (1994) 122 ALR 333

CORPORATIONS - Winding up - Administration. After summons for winding up served, company appoints administrators and applies for adjournment. Administrators notify creditors of administration, but not of winding up proceedings, and obtain proxies from 80% of value. HELD that, while weight should be given to views of creditors, less weight could be given to the views of those not asked to choose between administration and winding up; that it was generally in the interests of creditors that an insolvent company be administered by someone not selected by directors; and that the onus of proving administration was in the interests of creditors was not discharged.

Defendant's Notice to Produce to Plaintiff dated 1 March 1999 - T119

On admissibility of evidence on Defendant's Motion to set aside Notices to Produce

Draft Local Environmental Plan to reclassify community land - Notice of Motion for extension of time to appeal - Notice of Motion for leave to appeal re costs judgment - Notice of Motion seeking injunctions

Corporation - company - voluntary administration - court's power to postpone execution of deed of company arrangement - court's power to allow liquidator to appoint himself administrator - relevant considerations

Bankruptcy - jurisdiction of Supreme Court of New South Wales - transfer of property void against trustee in bankruptcy - director's guarantee and mortgage in favour of administrator of company prior to bankruptcy - consideration for transfer - value of consideration

Corporation - company - deregistration after winding up - Court's power to specify deregistration day - relevant cirteria

Extension of time - Sections 60G & I Limitation Act

FENCES AND BOUNDARIES; DP showed boundary by irregular line of western bank of creek with words "western bank is common boundary:" meaning and application of "bank" and ascertainment of position of boundary: interpretation of figured dimensions where geometric expression of bearings and dimensions on plan produces a misclose: on the facts it was found that one figured dimension was erroneous.

Judgment upon relief - following finding of unjust contract (Pasternacki v Correy: Hidden J, 7/08/98, NSWSC); Contracts Review Act - whether to set aside mortgage

Contract; Compromise of litigation; Inequality of bargaining power; Inability to protect own interests

Murder; Manslaughter plea; Diminished responsibility; Special circumstances

Approval of Customs penalty

Exhortation to jury

CRIMINAL LAW - sentence - appeal against severity of sentence - relationship between minimum and additional term - principle of totality - overall sentence not disproportionate to objective criminality involved; CRIMINAL LAW - offences against the person - sexual offences - carnal knowledge by teacher, s73 Crimes Act (NSW) 1900 - indecent assault, s76 Crimes Act

CONTEXTUAL IMPUTATION DEFENCE