Cases and authorities

Appeal decision of Local Court Magistrate - Small Claims Division - denial of natural justice

Costs of s 7A hearing.

Requests made under s.167 Evidence Act - plaintiff requested the defendant call as a witness certain persons who had made previous representations in particular documents - defendant refused to compy with request - plaintiff seeking an order that the evidence to which the request is made is not to be admitted in evidence - plaintiff would alternatively accept an order directing that persons believed to be concerned with production of specified documents be called as witnesses at the hearing - authenticity or admissibility of the documents in issue - defendant did not wish to tender the documents as evidence of the truth of the representations - documents annexed to affidavits contained previous representations - annexed documents included payment declaration forms and invoices for work undertaken by sub-contractors - the request procedures under s.167 of the Evidence Act - whether plaintiff's requests made under s.167 of the Evidence Act reasonable - the preconditions to be met by a requesting party - matters relevant to determining whether a request under s.167 a reasonable request - whether defendant's refusal to comply with request made without reasonable cause - matters to be considered in the exercise of the power to make orders under s.169.

CRIMINAL LAW - manslaughter - possession of a firearm - Chinese national - substantially impaired by an abnormality of mind arising from depressive illness - little evidence of objective gravity - strong subjective case - early plea of guilty - offence out of character - remorse - gun not acquired in contemplation of offence - importance of deterrence - special circumstances found in sentencing

Appeal Local Court Magistrate's decision - identity of employer

SUCCESSION – Wills, probate and administration – costs of probate action when all questions in probate settled except costs – costs of a part of litigation in which parties contest validity of two wills both of which parties eventually accept are invalid – factors influencing costs in probate actions – importance of role of a party, as being plaintiff or defendant, in assessing costs in probate actions

Leave to appeal decision of CTTT - indemnity costs

COSTS – costs assessment – meaning of “assessed on a solicitor and client basis” in Pt 39A r25(4) District Court Rules 1973 – whether same meaning as costs on an indemnity basis in Pt 39A r13 of the Rules – interaction of Rules with costs assessment regime in Pt 11 Division 6 Legal Profession Act 1987 – assessment of costs on “fair and reasonable” basis under s208F of the Act.

Sentence only - Special Circumstances - Partial Accumulation

CRIMINAL LAW - Appeal against sentence - Offences of supply prohibited drug - Whether youth and immaturity of offender significant - Approach to suspending sentence - Whether sentences manifestly excessive.

CRIMINAL LAW – sentence – offences of – breaking, entering and stealing from warehouse – detaining a security guard with the intention of obtaining an advantage – robbing of security guard – whether the sentencing judge gave an insufficient allowance for the applicant’s assistance and pleas of guilty – whether the sentences were manifestly excessive

Criminal law - appeal against conviction and sentence - sexual offences on victim under 16 in 1970 - form of indictment - whether unreasonable verdict - error in maximum penalty

CRIMINAL LAW - appeal against sentence - knowingly take part in supply of a large commercial quantity of a prohibited drug - parity - whether the sentence imposed gives rise to a justifiable sense of grievance

Criminal law - Break enter and steal in circumstances of aggravation - Standard non parole period inapplicable - Sentence - Related offence - Period of driving disqualification.

CRIMINAL LAW - appeal against conviction - malicious wounding with intent to do grievous bodily harm - whether the trial miscarried as a consequence of the Crown's cross-examination and address to the jury - whether the trial miscarried as a consequence on the trial judge's directions to the jury in respect of the evidence of one witness - silence of a witness - s 89 of the Evidence Act 1995 - right to silence

application for leave to appeal against severity of sentence - aggravated form of a charge of inciting a person under the age of 16 to commit an act of indecency - plea of guilty - finding of special circumstances - subjective circumstances - discount on sentence following plea of guilty - whether sentence manifestly excessive - whether necessary to show exceptional circumstances for non-custodial sentence - whether custodial sentence called for - whether starting point of sentence too high - whether motivation for offence was an aggravating feature - general deterrence

NEGLIGENCE - occupier's liability - injury sustained by employee of specialised independent contractor - whether occupier had reasonably responded to risk of harm that existed - whether occupier had sufficient relevant knowledge of risk for imposition of a duty to warn - whether occupier entitled to rely solely on specialised independent contractor in safeguarding employees from defects in premises in contractor's area of expertise - Papatonakis v Australian Telecommunications Commission applied. D

Costs - Indemnity costs - Offers of compromise - Multiple isues.

Limitation of Actions - whether a failure to comply with s48(4) of the Limitation of Actions Act 1936 of South Australia operates to extinguish a cause of action. - Appeal - error of law - irreconciliable findings of fact, not explained.

NEGLIGENCE - liability of retail vendor - injury sustained by employee of purchaer - retail of goods containing asbestos dust and fibres - additional factor required to establish a duty of care between vendor and purchaser - Laundess v Laundess applied - discussion of additional factor - goods not dangerous in themselves - discussion of determination that a defendant "ought to know" of a danger - reasonable foreseeability - scope of duty - standard of care - how standard of care to be determined - necessity to carry out evaluation required by Wyong Shire Council v Shirt - need to identify with sufficient precision what reasonable person in position of tortfeasor would do by way of response to the reasonably foreseeable risk. D

RESTITUTION - recovery of money paid under judgment - application for repayment after - appeal - - JUDGMENTS AND ORDERS - stay (ND)

APPEAL – finding that plaintiff had not discharged burden of proving injury suffered in circumstances alleged – finding credibility based – whether open to appellate intervention – HELD: No. (D)

Insurance - whether prior refusal of claim disclosed when taking out insurance - whether client legal privilege in counsel's advice recording knowledge of prior refusal had been lost - whether erroneous preference for evidence of insurer's practice and computer record over oral evidence of insured - whether error in fact-finding as to receipt of document from insurer - depends on facts. ND

EVIDENCE - where plaintiffs tender against partnership a transcript of liquidator's examination of one partner - whether tender justified by paras (a) and (b) of s 87, Evidence Act 1995 - whether tender should be conditional on partnership having oppportunity to cross-examine.

CORPORATIONS - unregistered managed investment scheme - order under s.601EE(2) for winding up and appointment of receiver - subsequent application by receiver for directions - need to proceed by analogy with other winding up regimes - relevance of status of receiver as officer of court

Costs

TAXES AND DUTIES - Stamp Duties - Hire duty - Master Licence agreement under which manufacturer appoints another company to exploit its products by hiring them to the public and grants possession while retaining title - Other company registered as a commerical hire business paying duty monthly - "Hire of goods" defined as arrangement under which goods are or may be used at any time by a person other than the person hiring out the goods - Whether manufacturer hires its products to the other company - Whether the other company an agent - Whether the manufacturer but not the other company carries on the commercial hire business - Whether interest and penalties should be remitted

CONTRACTS – contract for settlement of litigation – whether contract entered – whether Crown’s standard terms for settlement of District Court personal injuries litigation incorporated – whether appropriate to order specific performance of agreement – no questions of principle

Criminal Law - Bail Application - Applicant committed for trial - did not call evidence before magistrate - inappropirate to call defence evidence at bail hearing to attack strength of Crown case - relevance generally of strength of Crown case in bail hearings.

LANDLORD AND TENANT - covenants - covenant by tenant to remove all structures before expiration of term - in default landlord may "retain the same" or remove at tenant's cost - whether landlord's contractual right to retain or remove was sole remedy where tenant failed to remove - whether failure to remove was breach of contract - EQUITY - equitable remedies - specific performance - damages in lieu of specific performance - whether such damages will be awarded where act to be compelled by order for specific performance is unlawful - time at which lawfulness of act to be considered - LOCAL GOVERNMENT - ENVIRONMENTAL LAW - conspectus of provisions regulating development - specific provisions governing Sydney Harbour, Waverton Peninsula and Balls Head Coal Loader at 31 December 1993 and 17 December 1999 - LOCAL GOVERNMENT - definition of boundaries of local government areas - STATUTES - interpretation - whether inconsistency effects implied repeal - WORDS AND PHRASES - "exclusive control", "relic", "settlement"

Practice and Procedure - Leave to amend summons - Overriding Purpose Rule - Discussion of the objects of case management and the suite of provisions in the Civil Procedure Act which interlock with the overriding purpose

REAL PROPERTY [409] - Easements - Easements generally - Creation - By express agreement or under statute - Other matters - Grant by Court - Reasonably necessary for effective use or development of land - Discretion of Court.

Criminal law - manslaughter - plea of guilty - offender affected by intoxicating liquor - offender stabbed the deceased - did not act with intent to kill - offender and deceased were friends - deceased and offender wrestled at first in jest - cognitive and motor functions impaired by alcohol - contrition - good prospects of rehabilitation - special circumstances - guilty plea entered at first available opportunity.

CONTRACTS - uncertainty - whether absolute discretion of lender to fix interest rate valid - held it is not - whether determination of interest rate by lender requires communication - held it does - MORTGAGES - remedies of mortgagee - possession - discretion to defer issue of writ of possession

Succession. - Family Provision. - Claim by former de facto partner of Deceased. - De facto relationship obtained for only fourteen months. - It terminated more than forty-one years before the death of Deceased. - Plaintiff and Deceased thereafter maintained contact, essentially by letter and by telephone. - Financial and material circumstances of Plaintiff. - Whether there are factors which warrant the making of the application. - Whether, in any event, Plaintiff has established an entitlement to an order for provision. - Competing claims of beneficiaries named in will.

criminal law - refusal of parole - application to Supreme Court for direction to Parole Board - whether refusal based on false, misleading or irrelevant information - unrepresented litigant - need for legislative reform - factually incorrect finding by Parole Board - whether Board misunderstood or disregarded information before it - no power to give direction to the Board - misunderstands information

CRIMINAL LAW – Appeal – Conviction – Duress – Proper interpretation of s10.2 Commonwealth Criminal Code – meaning of “reasonably believes” – Whether trial judge erred by directing jury to have regard to objective belief of the accused – Whether proper to have regard to the circumstances as perceived by the accused - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not having regard to evidence of threats - WORDS & PHRASES – “reasonably believes”

CRIMINAL LAW – SENTENCE – guilty pleas - offences of - dangerous driving occasioning grievous bodily harm - doing an act intending to pervert the course of justice – whether the sentencing judge erred in failing to make the sentence for perverting the course of justice offence (either in whole or part) concurrent with the driving offence – totality principle

NEGLIGENCE - Motor Vehicle - The plaintiff aged 4 as passenger was injured by wheel cleat from unidentified vehicle travelling in opposite direction - challenges to DCJ's findings on negligence and on extent and nature of injury and continuing disabilities - numerous factual issues on liability and damages - consideration of - mitigation of damages MAA s.39 where infant's treatment decided by parent - allowance under s.45 of MAA for sums paid by insurer where payments exceeded damages assessed - claim for special order for costs under Calderbank offer - claim for order for costs against plaintiff's legal representatives.

NEGLIGENCE – Employee injured whilst engaging in lifting activities – inconsistent accounts of how employee injured – whether finding that employer breached its duty of care open on the evidence – HELD - open to primary judge to find for the respondent if, on the whole of the evidence, he could reasonably infer the accident was due to the employer’s negligence - DAMAGES – employee suffered muscular ligamentous strains and aggravation of pre-existing degenerative changes in low back – Workers Compensation Act 1987 – modified common law damages – whether employee’s injuries constituted 30% of a most extreme case – HELD – assessment of 30% so unreasonable as to warrant appellant intervention – assessment of 20% substituted (D)

NEGLIGENCE – no breach of duty of care – adequate warning – CONSTRUCTION SAFETY – Construction Safety Regulations 73 and 74 – complex building project involving volunteers – volunteer roofer – fall from unfinished roof – absence of scaffolding – building work – construction work – carrying out construction work – directly or by servants and agents – active involvement – head contractor/sub-contractor – in charge of construction work – preliminary steps or ancillary work – obligation to provide safety equipment – contravention of Regulations – whether plaintiff was sole cause of his accident – whether breach materially contributed to injury. (D)

CORPORATIONS – home unit company title – It was held that provisions of articles delineating an area of the roof adjacent to the Penthouse as “Roof Garden for Penthouse” were part of the rights annexed by the Articles to the shares relating to the Home Unit immediately under the Penthouse, and were Class Rights which could not be altered except according to Modification of Rights Article, over which holders of those shares had control. The holders of those shares were entitled to restrain the Company and the holder of the Penthouse shares from acts and decisions which would enable extension of the Penthouse over part of the Roof Garden – Consideration of operation of Articles in Home Unit Company, Class Rights, Modification of Rights Article, whether holder has leasehold or contractual licence, entitlement to quiet enjoyment. Reid House Pty Ltd v Beneke (1986) 5 ACLC 451 disapproved

FAMILY LAW AND CHILD WELFARE - adoption - name of child - change of name of child - whether Adoption Act prevents intending adoptive parents from calling child placed with them for adoption by a name other than his given name - construction of section 101 Adoption Act 2000 - whether ambiguity exists - whether extrinsic aids to construction permissible - meaning of "special reasons" - relevance of Article 8 United Nations Convention on the Rights of the Child (UNCROC) - meaning of Article 8 UNCROC - whether Article 8 UNCROC prohibits change of name of child upon adoption - whether special reasons for change of name demonstrated - whether permissible to give weight to the fact that parents have been calling child by a name different to his given name - INTERNATIONAL LAW - effect in Australian law of treaty which Australia has ratified but not enacted in legislation - construction of Article 8 UNCROC - whether changing a child's name upon adoption contravenes Article 8 UNCROC - principles for construction of treaties - use of travaux préparatoires - WORDS AND PHRASES - "special reasons"