Cases and authorities

CRIMINAL LAW - trial by jury - jury decides to change foreperson in course of trial - not necessary for good reason for change to be demonstrated - not necessary that original foreperson consent to replacement - jury may choose new foreperson if it sees fit

EQUITY - injunctions - interlocutory injunction - whether serious case to be tried of breach of confidentiality through trespass - short restraint proposed in first instance - where balance of convenience lies

CORPORATIONS – Statutory demand – Portion of debt owed a judgment debt – Appeal from judgment pending – Application to set aside under s 459J(1)(b) for “some other reason” – Where Court of Appeal granted stay of execution of judgment on terms that plaintiff provide security within 21 days and plaintiff did not comply with terms – Held no sufficient “other reason” within meaning of s 459J(1)(b) – Application dismissed.

CRIMINAL LAW: - application for leave to appeal against sentence - charges of robbery, steal from the person and other related charges - pleas of guilty - challenge to competence of representation in sentence proceedings - whether sentence is manifestly excessive - no question of principle

Conviction appeal - robbery armed with an offensive weapon - whether verdict unreasonable or cannot be supported having regard to the evidence - identification by victim - inconsistencies in description of offender - effect of alibi evidence - matters not volunteered by victim - importance of photo identification process.

Sentence - application of s21A(2)(h) of Crimes (Sentencing Procedure) Act 1999 - did it apply to false belief that victim was a paedophile - effect of accumulation of sentences to provide a non-parole period greater than 75% of the total sentence - whether Court should intervene.

CRIMINAL LAW: Application for leave to appeal against sentence - dangerous driving occasioning death - applicant driving heavy vehicle - approach to guideline in R v Whyte - whether sentence manifestly excessive

EQUITY – Rectification – Insurance policy – test for rectification – whether certainty is required as to meaning as opposed to form of omitted words – comparative weight of pre-contractual and post-contractual evidence – significance of evidence from participants or absence thereof – where contract negotiated through agent – whether evidence of principal necessary – discretionary considerations

Costs - filing of further amended statement of claim - whether costs thrown away as a result of the amendments should be paid by plaintiffs - whether application for costs made too late - whether UCPR 42.7(1) was applicable to application for costs - prima facie - if costs wasted as a result of amendment - amending party should pay.

ADMINISTRATICE LAW – mandamus – duty of Ombudsman to report – duty to conclude investigation – privative clause – locus standi – insufficient interest to initiate or continue proceedings – no interest greater than public – summary judgment – proceedings dismissed.

EQUITY – building contract for construction of private residence – settlement of dispute between builders and owners – owners’ breach of settlement term – whether order for specific performance appropriate remedy – whether contractual obligation to demolish building improvements gave rise to fiduciary relationship between parties – principles considered – damages in lieu of specific performance – paucity of evidence – assessment of what is fair and reasonable in circumstances

Extension of time - sexual assaults by fellow employee - threshold requirements and requirements of s. 60G

WILLS PROBATE AND ADMINISTRATION – Testamentary instruments – Informal document – Whether intended to be will – Suicide note indicating desire to dispose of property – On specific facts of case the document was not of a testamentary nature – Wills, Probate and Administration Act 1898, s18A

CIVIL LIABILITY ACT - Regulation excluding application of Pt 4 of the Act if liability arose before 26 July 2004 - Regulation valid

CONTEMPT OF COURT – misuse of court’s processes – whether the threatened filing in separate proceedings by the appellants of an affidavit containing irrelevant and scandalous material, thereby prejudicing the respondent, amounted to an abuse of the court’s processes - CONTEMPT OF COURT – obstruction of the due administration of justice – whether, by bringing improper pressure to bear on the defendant in collateral proceedings so as to induce the settlement of such proceedings, the appellants obstructed the due administration of justice – whether the fact that such pressure was channelled through the respondent as a third party intermediary was material to the court’s finding that the appellants were guilty of contempt of court – onus and standard of proof – whether the material in question had a real and definite tendency, as distinct from a mere possibility, to interfere with the due administration of justice as to entitle her to interlocutory relief – objective / subjective test - CONTEMPT OF COURT – orders of chambers judge – width of orders – whether particular orders made by chambers judge were unnecessary or too wide – whether the unchallenged orders were wide enough to afford the respondent the protection she required – whether potential publication of material calculated to expose the respondent to ridicule, hatred and contempt – considerations of freedom of speech – balance between public interest in freedom of speech against public interest in the administration of justice – whether the orders granting an injunction were so wide as to distort this balance – consideration of potential harm to third parties as a result of improper pressure - DEFAMATION – orders of chambers judge – width of orders – whether order on defamatory ground could be supported – whether respondent established with reasonable certainty the words of the threatened publication – difference between final and interlocutory injunctions – whether requirement of reasonable certainty alleviated in cases of interlocutory relief – whether, if the words were uncertain, such uncertainty leads to the conclusion that the chambers judge could not conclude that there was certainty of defamatory publication – consideration of public interest in free speech – whether balance of convenience favoured the granting of an interlocutory injunction - EQUITY – equitable remedies – injunctions – interlocutory injunctions – contempt of court – misuse of processes of court – threatened filing of affidavit containing irrelevant and scandalous material – width and particularity of orders - EQUITY – equitable remedies – injunctions – interlocutory injunctions – contempt of court – obstruction of the due administration of justice – improper pressure placed on party to collateral proceedings – width and particularity of orders - EQUITY – equitable remedies – injunctions – interlocutory injunctions – defamation – threat to publish material carrying defamatory imputations – width and particularity of orders. D

EQUITY [29] - General principles – Priority and notice – Transaction carried out in breach of trust – Whether case falls within first limb in Barnes v Addy - PROCEDURE [93] - Supreme Court procedure - Practice under Supreme Court Rules - Summary disposal - Power to terminate summarily - Principles applicable.

CONEYANCING - Relationship of Vendor and Purchaser - Breach of Contract - Arrangement changed from exchange of counterparts before registration of strata plan to exercise of put or call option after registration - Proportional unit entitlement in registered plan different from entitlement under plan attached to contract for sale - Standard terms of contract for sale allowing rescission - Special condition allowing vendor to amend strata plan - Whether special condition otiose since strata plan registered before contract for sale came into existence

Appeal from Local Court - element of unfairness in prosecution - whether permanent stay appropriate - whether alternatives to permanent stay considered - unfairness required stay but not permanent stay.

CRIMINAL LAW - Fitness to be tried

PROCEDURE - time for service of originating process - extension of time - matters relevant to decision to extend time

Succession. Family Provision. Claim by adult daughter. Estrangement between Plaintiff and Deceased. Plaintiff was left a significant benefit under will of Deceased. Financial and material circumstances of the Plaintiff. Competing claims of Plaintiff's siblings and of Plaintiff's own children (one of whom is an infant).

Injury - repetitive work and incident - defective Pre-filing Statement - ambit of jurisdiction

ADMINISTRATIVE LAW – medical practitioner - inquiry by medical board – appointment by registrar pursuant to statutory delegation – delegation of discretionary power – substantive ultra vires – procedural ultra vires – error of law – exercise of power to appoint under s 66 Medical Practice Act 1992

TORTS – negligence – vicarious liability – owner of club – security guards employed by respondent club owner assaulted the appellant in a laneway – unauthorised acts of assault – proximity to authorised acts – whether the unauthorised acts of the security guards were so closely connected with acts which, by virtue of their employment, they were authorised to carry out, or whether they were mere independent acts motivated primarily by personal animosity and vindictiveness, such that they were to be regarded as improper modes of discharging their duties as security guards – interests of employer – whether the unauthorised acts were done in the supposed furtherance of the respondent’s interests. D

Contract - sale of business - adjustment of purchase price after completion - construction of clause relating to work in progress - provision for referral of disagreement to Valuer - whether dispute as to construction and operation of clause was itself a matter to be referred to the Valuer - effect of neither party referring disagreement to Valuer.

EVIDENCE - Evidence on Commission Act 1995 – request from Swedish court for the taking of evidence abroad, namely blood and buccal samples from putative father of child for the purposes of establishing paternity

CONYENACING - Relationship of Vendor and Purchaser - Matters Arising between Contract and Conveyance - Office building on site damaged by fire - Purchasers' original intention to demolish building and construct high-rise residential and commercial development - Whether the land was substantially damaged in terms of the Conveyancing Act 1919, s 66L - Whether the land was materially different from that which the purchasers contracted to buy in terms of the Conveyancing Act 1919, s 66J - Prinicples involved - Analogy with Flight v Booth (1834) 1 Bing (NC) 370 (131 ER 1160) and compensation for error or misdescription - Whether the purchasers, when property market fell, decided to defer the development and lease out the land and buildings

ADMINISTRATIVE LAW - judicial review of administrative decision - error of law on face of record - jurisdictional error - adequacy of reasons - certiorari - mandamus - statutory relief - decision of parole authority - determination to refuse parole - exercise of power under Crimes (Administration of Sentences) Act 1999

Criminal law - manslaughter by unlawful and dangerous act - sentence - plea of guilty

CRIMINAL LAW: Sentence - murder of offender's step-son - attempted murder of his partner - circumstances unexplained - prior good character - depressive illness and substance abuse - remorse - early pleas of guilty

ADMINISTRATIVE LAW – Judicial Review – Grounds of Review – review of decision not to determine claims unsuitable for assessment s92 Motor Accidents Compensation Act 1999 - ADMINISTRATIVE LAW – Judicial Review – Grounds of Review – review of characterisation of the Claims Assessment process as “non-binding arbitration” - ADMINISTRATIVE LAW – Judicial Review – Grounds of Review – review of approach to the Claims Assessment Guidelines - Wednesbury unreasonableness – irrelevant considerations

CONTRACTS [59] – General contractual principles – Statute of Frauds, section 4 – Note or memorandum – What amounts to – Must exist before action commenced – Affidavit filed in proceedings containing sufficient note or memorandum.

CRIMINAL LAW - refuse to undertake breath test - form of words used - whether sufficient requirement

PRACTICE AND PROCEDURE - summary dismissal - motion to strike out pleadings in whole or in part - curable defects

COSTS - general principle - costs to follow the event - wrong test by Licensing Court

CORPORATIONS - winding up - preference recovery action - no matter of principle

CRIMINAL APPEAL - VIDEO OF APPELLANT'S PERIODIC DETENTION CARD SHOWN TO JURY FOR 4 SECONDS - EVIDENCE NOT PREJUDICIAL - APPEAL DISMISSED

Contract - Novation - Variation - Formal contract for the manufacture and supply by Italian company of conductor to be used by Australian company in construction of electricity power lines in Western Australia - Terms of informal arrangements between contracting parties for the variation/novation of contractual obligations - Inferences from evidence of conversations, communications and subsequent conduct - Contractual construction - Causation - Damages for breach of contract - Duty to mitigate - Expert evidence - Jones v Dunkel

Administrative law - nurse - professional misconduct - impairment - removal of name from Register - period before reapplication for registration.

DEFAMATION - Cheques dishonoured by bank - Refer to drawer - Defences - Common Law defence of qualified privilege - Imputations - Matter complained of - Damages - Reputation - Business reputation - Hurt to feelings - Causation - Failure to mitigate - Breach of contract

JOINT VENTURE AGREEMENT:- agreement to purchase and develop properties - agreement to divide profits - unilateral termination of agreement - accounts show that there has no profit - share of loss - advance for anticipated profit - joint account - correct method of calculating the loss - interest - costs

Summary judgment for possession - jurisdiction - mediation

CONTRACTS – Offer and acceptance – Agreement contemplating execution of formal document – Offer to buy rural land – CONVEYANCING – Conditions of sale – Letter contemplating formal offer on given terms and contemplating execution of formal document – Whether offer made and accepted – Offer to buy rural land - MAGISTRATES – Appeals – To Supreme Court – Where leave not granted to appeal on a ground that involves a mixed question of law and fact – Where appeal not confined to questions of law – APPEAL AND NEW TRIAL – Court of Appeal – Jurisdiction and Powers – Appeal from the findings of a single judge in the Supreme Court in an appeal from the Local Court – Interference by sing judge of the Supreme Court with Magistrate’s findings of fact – Where leave not granted for an appeal on a question of mixed law and fact – Costs – Local Courts Act 1982 ss 73(1), 74(1) - Supreme Court Act s 75A

CRIMINAL LAW – Unlawful arrest – Person not informed that they were under arrest or the reasons for it – Exceptions to the requirement that a person should be informed of the reason why they are being arrested – Correct test for whether person had knowledge of the general nature of the alleged offence - TORTS – Particular torts – Unlawful arrest – Person not informed that they were under arrest or the reasons for it – Exceptions to the requirement that a person should be informed of the reason why they are being arrested – Correct test for whether person had knowledge of the general nature of the alleged offence - DAMAGES – Aggravated damages – Exemplary and punitive damages – Unlawful arrest by police officers

TORRENS SYSTEM - caveat against dealing - application for order for removal - caveat refers merely to "equitable interest" - that description insufficient - no basis for existence of any estate or interest shown

Sentence - executive director of public company - whether conduct knowingly or recklessly dishonest

MORTGAGES - where mortgagor commences proceeding to be relieved under Contracts Review Act from mortgage provision allowing mortgagee to recover enforcement expenses under mortgage - whether serious question to be tried - where mortgagor wishes to redeem - analogy with mortgage securing contingent liability - discharge to be provided upon payment into court of amount nominated by mortgagee as sufficient to cover enforcement expenses

SUCCESSION – Probate – Whether in circumstances it is appropriate for court to pass over the defendant from being granted probate – Fit and proper person – Due administration of estate – Whether or not misappropriation by the defendant of money from the deceased – Whether or not money was gifted by the deceased to the defendant – Intention of gifting – Deceased’s capacity and condition – Relevant standard of proof for misappropriation allegation – Credibility of witnesses – Acceptance of part only of a witness’s evidence – Referral to Director of Public Prosecutions

Family Provision. Application under the Family Provision Act 1982 by a daughter. Consideration of relationship between plaintiff and deceased. Deceased evicted plaintiff from the deceased's home. Order for provision made. No matter of principle.