Cases and authorities

COSTS – indemnity costs – Calderbank letter – whether judgment no less favourable to the defendant than the unaccepted offer – whether the judgment no less favourable to the cross claimant than the unaccepted offer – no question of principle.

CIVIL PROCEDURE - dispute about the directions to prepare for a final hearing of a long-running contest as to costs – despite directions to do so, the parties cannot agree upon a proper set of directions – what directions should be given under Civil Procedure Act 2005, s 61(2)(c) – no question of principle.

CIVIL PROCEDURE – Proceedings brought by person under legal incapacity – Settlement of proceedings brought by minor – Court approval – No points of principle

SUCCESSION – executors and administrators – rights, powers and duties – duty to realise deceased’s property for the benefit of the estate – deceased had been in possession of real property registered in the name of another person who had died in 1969 – deceased had ceded occupation and control of that property to the person nominated as executor of her will – whether at the date of the deceased’s death the deceased had an entitlement to possessory title forming part of her estate REAL PROPERTY – possessory title – property in possession of non-owner – non-owner cedes occupation and control to another person – which party entitled to apply for possessory title EQUITY – fiduciary duties – breach – second limb of Barnes v Addy – whether the wife of an executor who registered possessory title over property belonging to the estate knowingly participated in “dishonest and fraudulent design”

AGENCY – Power of Attorney – Whether donee accountable, as a fiduciary, to donor for self dealing transactions AGENCY – Liability of agent to principal – Fiduciary relationship

CONTRACTS — Formation — Intention — Certainty — Testamentary promise ESTOPPEL — Proprietary estoppel — Detrimental reliance — Proportionality of relief claimed

APPEALS — Local Court – leave to appeal from Local Court to Supreme Court – grounds with questions of mixed law and fact – s 40 of the Local Court Act 2007 (NSW) – whether the Court applied the correct test for contributory negligence – whether the Court failed to make material findings of fact – whether the Court afforded procedural fairness to the plaintiff – whether the Court misconstrued statutes – whether the Court failed to admit relevant evidence COSTS — appeal from Local Court – where the defendants seek costs for both the appeal and the hearing in the Local Court – where the original hearing date for the appeal was vacated

CIVIL PROCEDURE – subpoenas – application to set aside – documents to be produced claimed to be the subject of legal professional privilege – whether privilege waived by conduct CIVIL PROCEDURE – variations to interlocutory orders – often preferable to approach first instance judge again rather than seek leave to appeal EVIDENCE – legal professional privilege – waiver by conduct – test of inconsistency between conduct and maintenance of privilege

NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty’s railing and sustained serious injury - history of young children falling through railing to Council’s knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff’s injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State’s and grandparents’ costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order

TORTS – negligence – Civil Liability Act 2002 (NSW), ss 5F, 5L – meaning of “obvious risk” – identification of risk – level of generality – principles to be applied TORTS – negligence – elements of cause of action in negligence – breach of duty – whether failing to halt event breached Rodeo Association’s duty of care – whether liability defeated by s 5L of the Civil Liability Act 2002 (NSW) WORDS AND PHRASES – “obvious risk” – Civil Liability Act 2002 (NSW), s 5K CONSUMER PROTECTION – s 60 Australian Consumer Law – consumer guarantee – whether new case on appeal permissible

CRIMINAL LAW – Practice and procedure – Where applicant and co-accused jointly indicted for two counts of robbery in company – Where the evidence relied upon by the Crown against each of them essentially the same but for two telephone conversations between the co-accused and a witness – Where co-accused made admissions during those conversations – Where neither the co-accused or the witness implicated the applicant in the offending or made any reference to him – Where the applicant’s application for a separate trial was refused by the trial judge – Whether trial judge erred in the exercise of his discretion in refusing the application for a separate trial – No specific prejudice to the applicant by virtue of the admission of the conversations in a joint trial – Where jury would be directed not to have regard to those conversations when considering the case against the applicant – Appeal against the decision of the trial judge dismissed

CRIME – SENTENCE APPEAL – special circumstances – failure to give effect to finding as a result of the effect of accumulation – error disclosed – additional evidence taken into account on re-sentencing – appeal allowed – applicant resentenced

CRIMINAL LAW – Crown appeal against sentence – twenty two offences against eight victims – victims all children – reduced moral culpability of offender because of his deprived upbringing – evidence of long term adverse psychological effect on victims – offences involving threats and violence – each offence regarded as a serious example of an offence of that kind – offender also a victim of sexual assaults as a child – whether aggregate sentence manifestly inadequate – application of principles relating to Crown appeals – need for sentences to reflect the objective seriousness of offending – aggregate sentence manifestly inadequate – no application of residual discretion – need to re-sentence.

CRIME – appeals – appeal against conviction – where opinion evidence not objected to at trial – whether admission of that evidence involved any error of law – whether there was any miscarriage of justice CRIME – appeals – unreasonable verdict – where sole issue whether accused possessed drug for personal use – where accused bore onus of proof – whether open to jury to find accused guilty beyond reasonable doubt

CRIME – appeals – appeal against sentence - knowing participation in the cultivation of a large commercial quantity of cannabis plants - knowingly direct the activities of a criminal group – whether the sentencing judge erred in finding that the cultivation offence was aggravated pursuant to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act

CRIMINAL LAW – sentence appeal – manufacturing not less than commercial quantity of methylamphetamine – additional offence on a Form 1 – applicant owner of property where manufacture took place – parity with sentence of co-offender – whether applicant had a justifiable sense of grievance – applicant's rehabilitation efforts – remorse – subjective circumstances

CIVIL LAW – judicial review of decision to refuse admission as solicitor – application for removal of first defendant as party – no wrong alleged against first defendant – no remedy sought against first defendant – notice of motion granted

CIVIL PROCEDURE – pleadings - leave to file cross-claim – where no forensic prejudice occasioned by late filing

PRACTICE AND PROCEDURE – proceedings commenced in Dust Diseases Tribunal of New South Wales for damages arising from negligence and breach of contract – application to cross-vest proceedings to Supreme Court of Queensland under ss.5 and 8 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – whether transfer of proceedings to Queensland in the interests of justice – where all connecting factors relate to Queensland – transfer application allowed

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Jurisdictional error – Review of a certificate of a review panel – Failure to afford procedural fairness – Where the review panel furnished and relied upon an expert report without notice to the parties

JUDGMENTS AND ORDERS — Effect of — where need to perfect an order made following a hearing that the plaintiff perform repairs to a residential property the subject of a Crisp order by specifying the repairs and the timing of the repairs being carried out –– where the parties were unable to agree as to appropriate short minutes of order –– where the funds available to carry out the repairs were substantially exhausted by a shortfall in the expected sale price of an asset of the estate and the amount of legal costs incurred by the parties –– where the only practical course was to require that only essential repairs be effected –– where the repairs finally proposed by the plaintiff were ordered to be performed — no issue of principle

APPEALS — Crimes Act 1914 (Cth) s 19AY — Appeal against non-parole period fixed by Local Court — Nature of appeal — Appeal by rehearing — Whether rehearing de novo SENTENCING — Appeal against sentence — Non-parole period — Mitigating factors — Delay and assistance to law enforcement authorities — Matters of weight in discretionary exercise

SUCCESSION — Contested probate — Costs — Where litigation caused by testator, executor or person interested — Where circumstances led reasonably to an investigation of a matter — Allegations of undue influence

CIVIL LAW – judicial review - diagnostic conundrum - perplexing factual landscape - Bloomsday hearing – jurisdictional ping pong - workers compensation - somatic symptom disorder - severe depressive disorder - secondary psychological injury - whether Appeal Panel bound by agreement between the parties - procedural fairness - where Appeal Panel examines injured worker for itself - whether Panel required to provide report to parties - no general obligation to provide report - turns on circumstances of the case - circumstances required disclosure - limited nature of appeal process - where report raised matters outside grounds advanced by the parties - where worker had no memory of incident - whether lack of memory means any psychological injury is a secondary one

High Court – Appellate jurisdiction – Application for special leave to appeal – Abuse of process – Where applicant applied for special leave to appeal – Where applicant previously made application for special leave to appeal – Where previous application for special leave refused – Where substance of subsequent application for special leave substantially identical to substance of previous application for special leave – Where no exceptional circumstances identified in subsequent application explaining failure to raise novel issues in previous application – Whether subsequent application for special leave an abuse of process. Words and phrases – "abuse of process", "application for special leave to appeal", "compelling explanation or circumstance", "exceptional circumstance", "interlocutory application", "res judicata", "same subject matter", "special leave". Federal Court of Australia Act 1976 (Cth), ss 24(1A), 25(2). Judiciary Act 1903 (Cth), ss 21(1), 34(2), 35(2). High Court Rules 2004 (Cth), rr 6.07, 13.03.

CIVIL PROCEDURE – hearings – adjournment – relevant factors – where questions relating to damages may not be resolved by the time for trial – where hearing vacated.

EVIDENCE – rules of evidence – application - opinion evidence – where question is one of mixed fact and law – where question and answer rejected

CRIMINAL LAW – evidence - the parties don’t agree on much - credibility evidence - unfavourable witness cross-examined by leave - where evidence of witness’s statement before the jury - where witness denies substance of statement - where witness says police threatened her with charges - where defence counsel indicate no intention to confront police with allegations - intention to put evidence of witness as to threats “unchallenged” - the rule in Browne v Dunn - whether Prosecutor entitled to lead evidence - where matters not put to the witness - credibility rule - fairness - Liberace

ESTOPPEL — Anshun estoppel — Decisions to which applicable — No adjudication on the merits — Where proceedings were commenced in Supreme Court and subsequently settled — Where related proceedings were commenced in Local Court — Where Plaintiff’s motion to dismiss or strike out Local Court proceedings was dismissed — Whether magistrate erred in statement and application of Anshun estoppel — Whether magistrate erred by failing to find that Local Court proceedings constituted an abuse of process — Effect of Civil Procedure Act 2005 (NSW) s 91 APPEALS — Procedural fairness — Hearing rule — Whether magistrate failed to afford procedural fairness by taking into account documents which had not been admitted into evidence — Whether error was material APPEALS — Leave to appeal — Importance of finality of litigation — Effect of amount in dispute

SUCCESSION – Family provision – Claim by adult only child for provision from deceased mother’s estate under Succession Act 2006 (NSW), Ch 3 – Plaintiff and deceased estranged for sixteen years before deceased’s death – Will of the deceased made no provision for the Plaintiff – No competing financial claim by the residuary beneficiary niece – Relevance of estrangement – Whether adequate and proper provision not made in will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – where orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking that treatment – where orders previously made authorising the confinement of the young person to secure premises outside the medical facility after discharge from the medical facility for the purposes of continuing medical treatment as an outpatient and rehabilitation and recovery and to protect the young person from risk to their safety – where young person has frequently absconded from the secure premises – whether appropriate to continue the previous orders – appropriate to continue previous orders subject to ongoing review by the Court

CIVIL PROCEDURE — pleadings – form and content of pleadings – strike-out application for amended consolidated statement of claim – whether the pleadings disclose reasonable causes of action – whether the pleadings inform the defendants of the material facts on which the claim of economic loss is based

COSTS – dispute between parties as to the plaintiff’s right to reside at property of the parties’ deceased father – proceeding commenced by the plaintiff to enforce rights under occupancy agreement entered into prior to death of deceased – defendant appointed joint executor under will of deceased – proceedings resolved without a determination on the merits – not appropriate to conduct a hypothetical trial for the purposes of determining a question of costs – no orders made as to the costs of the proceeding

ORDERS AND JUDGMENTS – final orders – application to vary – whether orders made in the absence of the party affected – where party affected a company not separately represented – where shareholders of that party have participated in the proceedings on that party’s behalf including in relation to the order in question – whether court had power to make the variation sought – whether court would in any event make the variation sought

CRIME – Sentence Appeal – Applicability of Guideline judgment in Henry – method of application – manifest excess – no manifest excess – majority held no error in method of application of guideline judgment – by majority, appeal dismissed.

CIVIL PROCEDURE — Court of Appeal — Leave to appeal – no issue of principle – leave refused

CONSTRUCTIVE TRUSTS – house purchased in name of niece – primary judge found aunt and niece agreed that aunt would pay half outgoings in exchange for a one half beneficial interest – primary judge ordered niece to account to aunt for one half of net proceeds of sale, on terms that aunt repay amounts obtained from Centrelink for rental assistance – whether reasons of primary judge inadequate – whether finding as to common intention should be set aside – whether primary judge erred as to effect of illegality – appeal dismissed

CRIME – extended supervision order – validity –unacceptable risk of committing another serious offence – whether unacceptable risk must subsist throughout the duration of the order – Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 10, 11 STATUTORY CONSTRUCTION – objects clause –statutory statement of objects as aid to construction STATUTORY INTERPRETATION – clear statement rule – right to liberty – not available to subvert power to make extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 5B WORDS and PHRASES – “unacceptable risk”; “high risk offender”; “high degree of probability” – Crimes (High Risk Offenders) Act 2006 (NSW)

DEFAMATION – defamatory matter – where publication pleaded differs from publication proved – test to be applied – whether language of ‘fatal variance’ helpful DEFAMATION – remedies – aggravated damages – court not in position to assess aggravated damages – leave refused

CRIME – Sentence Appeal – manifest excess and failure to give effect to special circumstances – no manifest excess, by majority, minority did not need to consider – effect of accumulation on previously imposed sentences – assumed oversight – re-sentenced.

CRIMINAL LAW – adjustment to judgment

PROCEDURE — Judgments and orders — Amending, varying and setting aside — Accidental slip or omission — UCPR r 36.17

CIVIL PROCEDURE – Proceedings brought by persons under legal incapacity – Settlement of proceedings – Court Approval – No points of principle

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Variation of earlier orders

CRIMINAL LAW – circumstantial Crown case – primary, alternative and further alternative directions to the jury re authorship of the Wickr messages – indispensable intermediate fact – directions refused

CRIMINAL LAW – discharge of jury – actions of accused’s siblings during playing of ERISP – prejudice – seriousness – stage of proceedings – fairness – no miscarriage of justice – directions

CIVIL LAW – resolution of separate question – helicopter flight which crashed – severe injuries to passenger – whether Commonwealth Civil Aviation (Carriers’ Liability) Act 1959 applies – ‘joy flight” – flight departing from and returning to same place – whether single point of departure and landing precludes the operation of the Act – construction of s 27(1)(c) – whether a textual or purposive construction should be made – basis of liability – whether pursuant to the Act or under common law

CIVIL PROCEDURE – claim for interest under Civil Procedure Act 2005, s 100 – settlement reached after mediation – two claims left open in settlement – but the settlement provided for the later payment of those claims by the defendants, upon the plaintiffs substantiating certain payments they claimed they had made to third parties on behalf of the defendants – after some time the defendants made the payments on the two claims left open in the settlement – but the plaintiffs claim the defendants delayed in making these payments – the defendants seek to explain their delay on the basis that it was caused by the plaintiffs’ own delay in substantiating their claimed payments to the third parties – whether the plaintiffs are entitled to interest upon the delayed payments on the two claims. COSTS - whether the plaintiffs should have an order for the costs of pursuing the delayed payments on the two claims.

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order – serious sex offender – defendant currently subject to parole – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – dispute as to conditions – whether scheduling conditions should be imposed.

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order – serious violence offence – one count of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) – offender currently on parole – whether defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – where the defendant has complied with all conditions of his parole – most recent risk assessment rated the defendant’s risk of serious reoffending at medium to low – application dismissed.