The Authorised Reports of the Decisions of the Supreme Court of Tasmania THE TASMANIAN REPORTS EDITOR CHRIS GUNSON.

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1 NOVEMBER 2011 The Authorised Reports of the Decisions of the Supreme Court of Tasmania THE TASMANIAN REPORTS EDITOR CHRIS GUNSON Barrister-at-Law REPORTERS CHRIS GUNSON DR REBECCA BRADFIELD VOL 18 PART 3 PAGES PUBLISHED FOR THE COUNCIL OF LAW REPORTING OF TASMANIA BY THOMSON REUTERS (PROFESSIONAL) AUSTRALIA LTD.

2 The mode of citation of this part will be: 18 Tas R TABLE OF CASES REPORTED Part 3 Pages Acheson v Hibble Bowden v Break O Day Council Break O Day Council; Bowden v Budd; Hobart City Council v Business Expansion Capital Pty Ltd; Powell v... 1 Drewitt v Resource Management and Planning Appeal Tribunal (No 2) Geale v State of Tasmania Grunseth v Resource Planning and Development Commission Hibble; Acheson v Hobart City Council v Budd Howlin v Resource Management and Planning Appeal Tribunal Johnston; Tasmania v Keating; Quarmby v Latrobe Council v Williams Latrobe Football Club Inc v Williams Lincolne v Williams Mann v Tasmania Marlow v Walsh Moyle; Tasmania v Nine Eleven Tasmania Pty Ltd; Strata Corporation No The Gasworks, 2 Macquarie Street, Hobart v (Cases in bold reported in this part) Lawbook Co Thomson Reuters (Professional) Australia Limited ABN Published in Sydney ISSN

3 TABLE OF CASES REPORTED Powell v Business Expansion Capital Pty Ltd... 1 Quarmby v Keating Resource Management and Planning Appeal Tribunal (No 2); Drewitt v Resource Management and Planning Appeal Tribunal; Howlin v Resource Planning and Development Commission; Grunseth v S, A Medical Practitioner, Re Stojakovic; Tasmania v Strata Corporation No The Gasworks, 2 Macquarie Street, Hobart v Nine Eleven Tasmania Pty Ltd Tasmania v Johnston Tasmania v Moyle Tasmania v Stojakovic Tasmania, State of ; Tusyn v (No 2) Tasmania, State of; Geale v Tasmania; Mann v Tusyn v State of Tasmania (No 2) Walsh; Marlow v Williams; Latrobe Council v Williams; Latrobe Football Club Inc v Williams; Lincolne v (Cases in bold reported in this part)

4 INDEX Part 3 Pages CONTRACTS General contractual principles Construction and interpretation of contracts Other matters Avoidance of commercial inconvenience Commercial lease agreement Landlord entitled to require reinstatement of premises to original condition Timing of reinstatement. Strata Corporation No The Gasworks, 2 Macquarie Street, Hobart and Another v Nine Eleven Tasmania Pty Ltd CONVEYANCING Land titles under the Torrens system Indefeasibility of title: certificate as evidence Exceptions Adverse possession of others After certificate Tasmania History of the law of obtaining title by adverse possession. Land titles under the Torrens system Indefeasibility of title: certificate as evidence Exceptions Adverse possession of others After certificate Tasmania Requirement for possessor to have possession for 12 years, excluding any period during which rates are paid by the owner. CRIMINAL LAW Jurisdiction, practice and procedure Judgment and punishment Sentence Concurrent, cumulative and additional sentences, sentences on escape and commencement of sentence Date of commencement Pre-sentence custody period unrelated to offences for which sentenced Power to back-date Sentencing Act 1997 (Tas), s 16. Geale v State of Tasmania DAMAGES General principles Other matters Damages assessed once and for all Immediate physical injuries and delayed psychiatric injury. Tusyn v State of Tasmania (No 2)

5 ENVIRONMENT AND PLANNING INDEX Environmental planning Courts and tribunals with environment jurisdiction Tasmania Resource Management and Planning Appeal Tribunal and its predecessors Powers and duties on appeal Power to set aside decision and remit for reconsideration in accordance with any directions or recommendation Whether directions or recommendation must be given Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 23(2)(c)(ii). Howlin and Another v Resource Management and Planning Appeal Tribunal Environmental planning Planning schemes and instruments Tasmania Amendments to planning schemes Requirement that part of a draft planning scheme be done again Impact on decision-making of planning authority as to application for planning permit Land Use Planning and Approvals Act 1993 (Tas), ss 28(1), (5), 51(3)(b). Howlin and Another v Resource Management and Planning Appeal Tribunal Pollution Waste disposal Offences Defences Defences afforded by statute Reasonable and practicable measures of prevention Environmental Management and Pollution Control Act 1994 (Tas), ss 51A(2), 55. Hobart City Council v Budd LIMITATION OF ACTIONS Land Adverse possession What amounts to Adverse possession does not run during any period when rates are paid by the owner Land Titles Act 1980 (Tas), ss 138T, 138U, 138V, 138W Limitation Act 1974 (Tas), ss 10(2), 21. Land The running of time Matters affecting Adverse possession does not run during any period when rates are paid by the owner Land Titles Act 1980 (Tas), ss 138T, 138U, 138V, 138W Limitation Act 1974 (Tas), ss 10(2), 21. PROFESSIONS AND TRADES Health care professionals Medical practitioners Disciplinary proceedings Professional misconduct and unprofessional conduct Departure from accepted standards No consent by patient and no inquiry by medical practitioner. Re S, A Medical Practitioner STATUTES Acts of Parliament Interpretation Acts and clauses Tasmania Reference in a statute to repealed by re-enacted provisions in the same statute Acts Interpretation Act 1931 (Tas), ss 13(5), (6), 17 Land Titles Act 1980 (Tas), ss 40(3)(h), 138W.

6 WORDS AND PHRASES INDEX Reasonable and practicable Environmental Management and Pollution Control Act 1994 (Tas), s 55. Hobart City Council v Budd