Cases and authorities

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — circumstantial case —prosecution case resting primarily on intercepted telephone calls translated into English in which participants used coded language to refer to prohibited drugs — whether the evidence supported the inference that an admitted agreement to traffic cocaine extended to bringing the cocaine into Australia CRIME — Appeals — Appeal against Sentence — where accused committed offence while on parole for previous Commonwealth offence — parole order taken to have been revoked upon imposition of second sentence by force of s 19AQ(1) of the Crimes Act 1914 (Cth) — whether upon subsequent sentencing s 19AQ(5) requires whole of parole period to be served by the offender — whether offender entitled to reduction for “clean street time” CRIME — Appeals — Appeal against sentence — Manifest excess

JUDICIAL REVIEW – crime – review of judgment of District Court on appeal from Local Court – jurisdictional error – no tenable ground

ENVIRONMENT AND PLANNING – development application – power to grant consent – local environmental plan – requirement that proposed development “is compatible” with the “flood hazard” of the land – assessing compatibility at date of determining application – whether future measures to ameliorate flood hazard relevant – future measures not part of application – Wingecarribee Local Environmental Plan 2010 (NSW), cl 7.9(3)(a) STATUTORY INTERPRETATION – extrinsic materials – dictionaries – usefulness of reliance on dictionaries in statutory interpretation STATUTORY INTERPRETATION – immediate context – consistency of operation – local environmental plan – statutory precondition to granting development consent – grammatical tense of clause – requirement for contextual construction of clause

PROCEDURE - pseudonym orders under Court Suppression and Non-publication Orders Act 2010 (NSW) - requirement to take into account public interest in open justice - requirement to specify basis and duration - requirement that order be necessary - contrast with orders under Civil and Administrative Tribunal Act 2013 (NSW) s 64

APPEAL – sentence appeal – where appellant obtained a financial advantage by deception from a Commonwealth entity – where bank accounts opened for tax refunds from lodgement of false income tax returns – where appellant dealt with proceeds of crime – where additional offence to be taken into account on s 16BA schedule – whether appellant asked whether he wished the additional offence to be taken into account – whether denial of procedural fairness – whether a particular person to be considered victim of offending – where term victim to be construed broadly – whether sentencing judge took relevant matters into account – whether error in finding appellant was not remorseful

CORPORATIONS – Winding-up – interlocutory process to set aside winding-up order pursuant to r 36.15 or 36.16(2)(b) Uniform Civil Procedure Rules 2005 – where orders made in the absence of the Company – where originating process and statutory demand deliberately not brought to the attention of the applicant’s solicitor – where neither the creditor nor the liquidator disputed the solvency of the Company COSTS — Party/Party – where orders set aside pursuant to r 36.16(2)(b) and originating process dismissed – whether applicant or respondent ought to bear the costs of the interlocutory process and the originating process – whether applicant seeking an indulgence in light of finding that the originating process and statutory demand were deliberately not brought to the attention of the applicant’s solicitor –where that decision the principal cause of the incurring of costs in the proceedings

CRIME – appeal and review – powers of Supreme Court judge – review of decision to dismiss an application for an inquiry under the Crimes (Appeal and Review) Act 2001 (NSW), s 79(3) – whether judge who sat on an appeal from the applicant’s conviction disqualified from sitting on judicial review proceeding PRACTICE AND PROCEDURE – bias rule – whether judge who sat on an appeal from the applicant’s conviction disqualified from sitting on judicial review proceeding PRACTICE AND PROCEDURE – bias rule – whether reasons for final judgment can be relied on to sustain allegation of apprehended bias – whether reasons disclose actual bias

PRACTICE AND PROCEDURE – costs – appeal – variation of costs order – variation by consent – appellant not liable to pay costs of respondents not joined by it PRACTICE AND PROCEDURE – costs – application to vary costs orders made at trial – orders failed to reflect apportionment of liability – orders not challenged on appeal – no power to vary after appeal determined – slip rule not available PRACTICE AND PROCEDURE – appeal – apportionment of indemnity – order at trial limited to apportionment of interest – no error alleged on appeal – no power to vary after appeal determined

CORPORATIONS – application to set aside a creditor’s statutory demand – Genuine dispute as to nature of money transferred – Genuine dispute as to identity of parties involved in transfer – Creditor’s statutory demand set aside.

SUCCESSION – Family provision – Notional estate – Where property of the estate distributed – Where primary beneficiary deceased and her estate held by executor – Where notional estate order made by primary judge – Whether estate of deceased beneficiary able to be designated notional estate under Family Provision Act 1982 (NSW), s 24 – Appeal allowed. SUCCESSION – Family provision – Claim by adult child – Proceedings not commenced within time – Where application made 12 and a half years out of time – Where primary beneficiary of testator now deceased – Where general assurances of a testamentary benefit given to applicant by deceased beneficiary – Whether sufficient cause shown to extend time – Whether primary judge erred in disregarding prejudice to deceased beneficiary and her estate in exercising discretion to extend time – Appeal allowed.

AMENDMENT – where application to amend cross-claim on appeal to add liquidated claim for breach of covenant to pay rent – where no leave sought to amend cross-claim at trial – whether cross-respondent bound by conduct of its case at trial – amendment application refused CONTRACTS – registered lease – where leased premises damaged as a result of water overflowing from box gutters on roof – where lessee covenanted to maintain and repair leased premises and to regularly clean and clear gutters, drains and downpipes – where installation of decorative grates and gauze in box gutters was a cause of damage to leased premises – whether the installation of grates and gauze constituted a breach of lessee’s covenants – whether lessor entitled to indemnity EVIDENCE – whether primary judge erred in finding that the “only available inference” on the evidence was that the lessee installed grates and gauze in box gutters – where open to Court of Appeal to review evidence and make appropriate finding as to the most probable inference JUDGMENTS AND ORDERS – interest – whether lessor entitled to contractual rate of interest on component of judgment sum referable to unliquidated claim for damages or indemnity for breaches of lease – whether primary judge’s discretion miscarried in choice of date from which prejudgment interest would accrue on the judgment sum – Civil Procedure Act 2005 (NSW) s 100

NEGLIGENCE – breach of duty – Civil Liability Act, s 5B – whether failure of solicitors to commence proceedings for Family Provision Act provision against estate prior to mediation constituted breach – whether there was a relevant risk of harm NEGLIGENCE – causation – whether a readily enforceable settlement was reached at mediation – whether there was a realistic chance that the appellant would have recovered the full settlement sum but for the negligence – relevance of actions of a third party NEGLIGENCE – damages – loss of commercial opportunity contract claim – prospects of appellant recovering the full settlement sum NEGLIGENCE – defence of proportionate liability – Civil Liability Act, s 35 – concurrent wrongdoers – whether the loss sued for was a different loss to that caused by the alleged wrongdoer NEGLIGENCE – advocate’s immunity – whether alleged breach was intimately connected with the resolution of the proceedings by court decision – whether consent orders entered by registrar in Family Provision Act proceedings involved the exercise of an independent discretion

COSTS – offer of compromise – small offer made by defendant shortly after recovery proceedings commenced in District Court pursuant to Workers Compensation Act 1987 (NSW) s 151Z(1)(d) – motor vehicle accident many years earlier – ample time to investigate – defendant ultimately successful in Court of Appeal – whether offer of compromise amounted to genuine compromise – significance of important evidence emerging later in litigation

CRIME — appeals — appeal against conviction — extension of time in which to appeal — point not raised below — where vulnerable complainant gave evidence at trial in manner provided by Ch 6 Pt 6 of the Criminal Procedure Act 1986 (NSW) — where all parties consented to course taken at trial — whether trial judge first required to form independent satisfaction of condition in s 306P(2) — whether miscarriage of justice

APPEALS – jurisdiction – challenges to evidentiary rulings at trial by Crown and accused – whether jurisdiction of Court of Criminal Appeal to review refusal of permanent stay permitted accused to challenge evidentiary rulings – whether Crown could, in absence of an appeal, challenge a contingent ruling concerning tendency evidence – no jurisdiction to entertain either challenge APPEALS – stare decisis – Court invited to depart from longstanding authority on statutory provision – sustained criticism of section by courts and law reform bodies – test for departing from settled construction – significance of re-enactment of legislation substantially unaltered despite criticisms CONSTITUTIONAL LAW – principle in Kable v DPP – whether law which precluded questioning complainant in sexual offence prosecution substantially impaired court's institutional integrity – where court retained power to stay prosecution – challenge to validity dismissed CRIMINAL LAW – permanent stay – where statute said to cause significant prejudice to accused, to give jury a distorted picture and to detract from prosecutor's obligations of fairness – complainant permitted to be asked certain questions not infringing s 293 – nature and extent of prejudice not presently ascertainable – application dismissed EVIDENCE – Criminal Procedure Act (NSW), s 293 – provision precludes questions disclosing or implying that complainant has or may have taken part or not taken part in any sexual activity – accused sought to rely on evidence that complainant had previously fabricated claims of sexual assault – evidence of varying qualities, ranging from third hand hearsay to pleading guilty to making a false report – whether s 293 applied to evidence of fabrication – whether s 293 applied to "proven" instances of fabrication – whether instances of false complaint over many years comprised a "connected series of events" occurring "at or about the same time" as the commission of the offence – history of s 293, its predecessors and its counterparts in other jurisdictions considered

EVIDENCE – hearsay – exceptions – admissions – where evidence admitted as a previous representation of a common purpose by former co-accused – whether evidence can only be admitted as a previous representation of the common purpose alleged in the proceedings – whether evidence improperly admitted CRIMINAL PROCEDURE – trial – judge alone – where applicant gave evidence he does not swear – where applicant slipped and made an exclamation as leaving the witness box – where trial judge alleged he swore – whether trial judge erred in holding that the applicant swore – whether trial judge erred in refusing application to discharge herself EVIDENCE – corroboration – meaning of corroboration – whether trial judge erred in finding that complainant’s evidence was corroborated CRIMINAL PROCEDURE – trial – judge alone – directions – where trial judge requested to direct herself to approach evidence with caution due to the witness’ age and ill health – whether trial judge erred in giving no weight to the effect on reliability of the witness’ evidence CRIMINAL PROCEDURE – trial – judge alone – delay – where 44 year delay in applicant being brought to trial – where trial judge requested to direct herself that applicant was under a forensic disadvantage because of delay – whether trial judge erred in refusing to do so CRIMINAL PROCEDURE – trial – judge alone – verdict by direction – where trial judge gave Markuleski direction – whether trial judge erred in properly considering implications of directed verdicts EVIDENCE – character evidence – good character – whether trial judge erred in dismissing good character evidence EVIDENCE – judicial notice – matters of common knowledge – where trial judge took judicial notice of church practices of moving priests from parish to parish when complaints arose – whether trial judge erred in doing so CRIME – appeals – appeal against conviction – unreasonable verdict

CRIME – SENTENCE APPEAL – Crown appeal against asserted manifest inadequacy of aggregate sentences – charges of possession, production, and dissemination of child abuse material – use child or consent to use child under 14 to produce child abuse material – aggravated indecent assault – incite act of indecency – respondents step-father and mother of child victim – very young child used to produce child abuse material – abuse of trust – question of whether sentencing judge erred in assessment of objective gravity

DEFAMATION – application for third party costs order – extensive requests PROCEDURE – subpoena – application to set aside PROCEDURE – notice to produce – application to set aside

CRIME – appeals – application under r 50C of the Criminal Appeal Rules to set aside judgment and reconsider merits of the appeal – misapprehension about facts established – whether error had material effect on determination of appeal – material effect not established – application dismissed

STATUTORY INTERPRETATION – Payroll Tax Act 2007 (NSW) – ss 32(2)(a) and 32(2)(d)(i) – relevant contract –whether payments made under a subcontract were exempt from payroll tax – whether legal title required to pass for there to be a supply of goods – whether payments were made “under” the subcontract – whether installation services were “ancillary” to the supply of goods STATUTORY INTERPRETATION – Taxation Administration Act 1996 (NSW) – ss 25 and 33 – whether the power to remit penalty tax and interest is limited

CRIMINAL LAW – appeal against sentence – 11 offences of dishonestly obtaining a financial advantage by deception – 10 further offences of the same kind on three Forms 1 – $3.6 million unaccounted for – whether sentencing judge erred in failing to assess the objective seriousness of the offences – whether sufficient discount for assistance to authorities allowed – whether sentence imposed was manifestly excessive – objective seriousness of offences properly assessed – no error in discount allowed for assistance – sentence not manifestly excessive – error in formulation of indicative sentences – requirement to set out basis for differences between indicative sentences – error in formulation of indicative sentences not sufficient to require change in the aggregate sentence – appeal against sentence dismissed.

CRIME – Appeals – Appeal against aggregate sentence – prohibited drug offences including not less than large commercial quantity of methylamphetamine – whether error in District Court record was an error in sentence – whether misstatement of facts had the capacity to affect the sentence – whether error in assessing the objective seriousness of the supply of the large commercial quantity of methylamphetamine – whether error in failing to give a sentencing discount for past assistance to police – whether error in determining special circumstances – whether marked disparity with sentences imposed on co-offenders – re-sentence – indicative sentences – aggregate sentence imposed

CRIMINAL LAW - sentence - applicant convicted after trial of offences of recklessly dealing with proceeds of crime contrary to s.193B(3) Crimes Act 1900 (23 counts) and attempting to commit offences under s.193B(3) (five counts) - sophisticated scheme to defraud bank by means of fraudulent loan applications - applicant sentenced to aggregate sentence of imprisonment for nine years and two months with non-parole period of six years and three months - co-offender convicted at later separate trial of knowingly dealing with proceeds of crime contrary to s.193B(2) Crimes Act 1900 (23 counts) and attempting to commit s.193B(2) offences (five counts) - co-offender sentenced to aggregate sentence of imprisonment for six years with a non-parole period of four years - different maximum penalties for offences under s.193B(3) (10 years’ imprisonment) and s.193B(2) (15 years’ imprisonment) - applicant claims legitimate sense of grievance arising from lesser aggregate sentence imposed on co-offender - principles of parity, proportionality and relativity of sentences considered - relevance of co-offender receiving lesser aggregate sentence for offences carrying greater maximum penalties arising out of the same criminal enterprise - consideration of objective and subjective factors relating to the applicant and the co-offender - breach of proportionality principle established - appeal allowed - applicant resentenced taking into account proportionality principle - lesser aggregate sentence passed

APPEAL – sentence appeal – where appellant assaulted victim with knife with intent to rob – where appellant self-represented – whether sentence manifestly excessive – whether sentence unreasonable or plainly unjust

APPEAL – sentence appeal – where altercation at motel – whether error in making findings as to objective seriousness – whether Crown made concession as to objective seriousness – where objective seriousness a matter for sentencing judge – where applicant not denied procedural fairness – where sentence manifestly excessive

APPEAL – Crown appeal against sentence – where offender participated in a conspiracy to import a commercial quantity of border controlled drug – where offender middle man responsible for creating introductions between overseas group and Australian group – whether sentence manifestly inadequate

Evidence – Criminal trial – Mixed statements – Where appellant interviewed by police prior to being charged – Where appellant made inculpatory and exculpatory statements during interview ("mixed statements") – Where recorded interview relevant and admissible – Where recorded interview not tendered by prosecution at trial – Whether prosecution's obligation to put case fully and fairly requires tender of records of interview containing mixed statements. Words and phrases – "admissibility of mixed statements", "admissions", "all available, cogent and admissible evidence", "duty of fairness", "ethical practice", "fair trial", "fully and fairly", "inculpatory and exculpatory statements", "miscarriage of justice", "mixed record of interview", "mixed statement", "obligation to tender", "prosecutorial discretion", "prosecutorial duty", "record of interview", "rule of practice", "speculation by the jury", "tactical decision". Evidence (National Uniform Legislation) Act 2011 (NT), ss 59(1), 81, 190.

Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant first respondent protection visa – Where decision referred to Authority for review – Where Authority ordinarily obliged to consider "review material" provided by Secretary of Department of Immigration and Border Protection ("Secretary") without considering "new information" – Where review material must include material considered by Secretary to be relevant to review – Where review material included identity assessment form – Where Authority notified that s 473GB applied to identity assessment form – Where notification included certificate purporting to certify that disclosure of information or matter contained in identity assessment form contrary to public interest – Where certificate invalid – Where certificate not before delegate at time of making decision under review – Whether certificate "new information" within meaning of s 473DC(1) – Whether certificate a "document" or contained "information" – Whether Authority could be inferred to have considered that certificate may have been relevant to conduct of review. Words and phrases – "certificate", "document", "documentation or information of an evidentiary nature", "fact, subject or event", "fast track reviewable decision", "identity assessment form", "information", "new information", "notification", "procedural obligation", "protection visa", "relevant", "relevant to the conduct of the review", "review material". Migration Act 1958 (Cth), Pt 7

TORT – misfeasance in public office – elements – identification of public power or duty – where police officer involved in trial laughed and rolled eyes during applicant’s trial – where applicant alleges her conduct amounted to misfeasance in public office – whether a purported exercise of a public power or duty identified – whether a capacity to act as an incident of a public office an exercise of public power TORT – summary disposal – whether statement of claim and particulars disclosed cause of action – whether applicant’s claim for misfeasance in public office was hopeless and doomed to fail – Whether limits of the tort of misfeasance in public office so settled that applicant’s claim is doomed to fail

CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 from refusal of Dietrich stay - applicant charged with tax fraud and money laundering - complex and lengthy trial - applicant failed to establish that he was indigent - whether error demonstrated in findings of primary Judge - no error demonstrated - whether interests of justice warranted - grant of leave to appeal - observations made concerning absence of provisions in Proceeds of Crimes Act 2002 (Cth) permitting release of restrained assets to fund a person’s defence - contrast with State confiscation legislation - leave to appeal granted - appeal dismissed

CRIMINAL LAW – appeal – appeal against conviction – offence of indecent assault on a child under sixteen years of age contrary to s 61M(2) of the Crimes Act 1900 – offence of sexual intercourse with a child under the age of ten years contrary to s 66A(1) of the Crimes Act 1900 – first trial aborted – Crown tendered complainant’s evidence at second and third trial – accused applied under s 306J of the Criminal Procedure Act 1986 to compel complainant to give evidence – application refused – trial judge erred in construction of s 306J of the Criminal Procedure Act 1986 – whether Crown Prosecutor’s closing address reversed the onus of proof – ground dismissed – appeal allowed – whether new trial or acquittal – new trial ordered

CIVIL PROCEDURE – summary dismissal – fraud or abuse of process in obtaining restraining order – property suspected of being proceeds of crime – subsequent forfeiture as result of convictions – Uniform Civil Procedure Rules, r 13.4(1) JUDGMENTS AND ORDERS – amending, varying and setting aside – fraud, misrepresentation or suppression of material facts – requirements for setting aside judgment on basis of actual fraud PROCEDURE – judicial review – plaintiff in custody serving sentence for Commonwealth offences – requirement for leave to commence proceedings –whether convicted of a “serious indictable offence” within Felons (Civil Proceedings) Act 1981 (NSW), s 4 – application to federal indictable offences – Judiciary Act 1903 (Cth), ss 79, 80; Interpretation Act 1987 (NSW), s 21

PRACTICE – parties – supervisory jurisdiction – review of orders made by District Court dismissing appeal from Children's Court – whether sibling of child should be joined to appeal – whether child the subject of the appeal required tutor – joinder refused, requirement for tutor dispensed with

ADMINISTRATIVE LAW — Particular administrative bodies — NSW Civil and Administrative Tribunal – Appeal under (NSW) Health Practitioner Regulation National Law s 159 against decision of Council for a health profession under s 150 and 150A – Hearing de novo – The essential task of the Tribunal in such an appeal ADMINISTRATIVE LAW — Hearing rule — Rules of evidence — Examination and cross-examination – Second aspect of the rule in Browne v Dunn (1894) 6 R 67 – Whether Tribunal erred in failing to have regard to the circumstance that evidence not accepted by Tribunal went unchallenged by cross-examination ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Findings of fact – Where obvious and innocent explanation not considered in circumstances where findings were grave, devastating and infected the whole decision – Error established ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Decision not authorised — Statutory construction – Hearing and review of decision under (NSW) Health Practitioner Regulation National Law, ss 150, 150A – Whether Council precluded from varying its earlier s 150 decision under s 150A where there is no finding of a change in circumstances by s 150A(4) – Where s 150C(2) authorises the variation of a decision without such limitation

CIVIL PROCEDURE – application for leave to appeal against decision striking out statement of claim and dismissing proceedings – claims for judicial review largely an attempt to relitigate issues dealt with in previous proceedings – remainder long out of time and lacking utility

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — co-offenders sentenced in Local Court and applicant in District Court — where sentencing judge did not consider parity when sentencing applicant — whether justifiable sense of grievance — whether failure of applicant's counsel on sentence to raise parity should be taken as acceptance of its limited role in determination of sentence — resentencing

CIVIL PROCEDURE – SUMMARY Disposal – Dismissal of proceedings against first and third defendants, solicitors for second defendant in prior proceedings – no reasonable cause of action disclosed.

CONTRACT – admitted breach of contract – causation of loss where alleged that, had proper due diligence been undertaken, an investment would not have been made – whether trial judge erred in holding that no damage was suffered by reason of breach of contract. INSURANCE – whether professional indemnity policy responded to a claim – whether insured party became aware of any circumstances that could give rise to a third party claim during the policy period.

PARTNERSHIPS – legal characterisation of business relationship between two insolvency practitioners – where insolvency practice conducted through a corporate trustee of a unit trust – where income derived by the practitioners in a personal capacity – where cheques for remuneration endorsed to corporate trustee – where practitioners had previously conducted a business in partnership – whether insolvency practice was a partnership PARTNERSHIPS – dissolution – account of partnership assets and liabilities – valuation of work in progress – where finding that work in progress comprised “collectible” component and so-called “goodwill” component – whether appropriate to have reference to collections actually made in valuation of collectible work in progress PARTNERSHIPS – dissolution – where no utility in appointing a receiver – form of orders appropriate to give effect to account of partnership assets and liabilities EQUITY – fiduciary duties – where shareholder transferred share to director’s nominee for nominal consideration upon dissolution of partnership – whether breach of fiduciary duty claim pleaded – whether open for primary judge to find director breached fiduciary duty owed to shareholder

CIVIL LAW – PROCEEDS OF CRIME – application for a stay of proceedings pending determination of unrelated matter before the Court of Appeal – where appeal matter turns on question of fact – whether similarity of fact suggests utility in awaiting the appeal decision

CRIME – appeal - conviction – miscarriage of justice – prosecutor’s statements in closing address – whether prosecutor’s use of rebuttal evidence impermissible – whether prosecutor mischaracterised or undermined accused’s good character evidence – Evidence Act 1995 (NSW), Pt 3.8 CRIME – appeals – conviction – unreasonable verdict – offences committed by father against son and daughter – prosecution reliance on young child complainants and their mother – defence denials and evidence of good character – rebuttal evidence EVIDENCE – character evidence – purpose and use of good character evidence – admissibility – rebuttal of good character – whether rebuttal evidence relevant to guilt or only to rebut good character – Evidence Act 1995 (NSW), Pt 3.8

EVIDENCE – CRIME – tendency evidence – identity of the offender and fact of the commission of the offences in issue – tendency evidence allegations of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant – tendency evidence of conduct committed towards different child, although of comparable age, three or four years after alleged offence – admission of tendency evidence did not give rise to a miscarriage of justice

CRIME – appeals – interlocutory appeal – appeal by Director of Public Prosecutions against ruling on evidence – multiple charges of sexual offences – complainant a child with a neurodevelopmental disorder – admissibility of admission by accused during pre-text call made by complainant’s mother – limited admission accompanied by exculpatory explanation – whether trial judge applied a wrong principle or mistook the facts – whether exclusion of the evidence substantially weakened the prosecutor’s case

CORPORATIONS – External administration – Winding up – Termination of winding up – Liquidator consents – Present creditors paid out – Sufficient funds to meet liquidators’ costs

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payments Act 1999 (NSW) - builder served payment claim - developers failed to serve payment schedule - builder obtained judgment pursuant to Act - developers' appeal from judgment dismissed - proceedings based on construction contract pending in Technology and Construction List - late filing of cross-claim by developers - no explanation for late filing of cross-claim - developers seek further stay of judgment pending determination of main proceedings - developers claimed that they would be wound up if no stay were ordered and the cross-claim would not be adjudicated - primary judge dismissed application for a stay - whether any error of principle - whether principles in a “Grosvenor stay” applicable - Grosvenor Constructions (NSW) Pty Ltd v Musico [2004] NSWSC 344 considered - whether developers had demonstrated basis for stay of execution - leave to appeal refused

CIVIL PROCEDURE – undefended judgment – setting aside – where applicant did not appear at hearing of proceedings – whether primary judge erred in describing principles for setting aside an undefended judgment under r 36.16(2)(b) of Uniform Civil Procedure Rules – where applicant sought to rely on Vacuum Oil Pty Co Ltd v Stockdale – whether Vacuum Oil applied to application to set aside undefended judgment under UCPR – whether in 1942 principles for setting aside an undefended judgment different at common law and in equity – whether, with introduction of Supreme Court Act in 1972, a single set of rules applied at common law and in equity – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether primary judge mischaracterised the nature and strength of applicant’s proposed defence – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether prejudice caused to the respondent in setting aside orders – whether prejudice can be remedied by costs order – no House v The King error shown CIVIL PROCEDURE – undefended judgment – setting aside – whether adequate explanation offered for applicant’s non-appearance at hearing and delay – no House v The King error shown

CRIMINAL LAW – appeal against sentence – break into dwelling house and committing indictable offence – accumulation – statutory ratio between parole and non-parole period – special circumstances – mental health and drug use – effect of finding – resentencing

CRIMINAL LAW – appeals – appeal against conviction – Mayor of Ryde – blackmail – unwarranted demand with menaces – mental element of offence – requirement of mens rea – Model Criminal Code – intention to menace – intention to make an unwarranted demand – intention to issue a threat – whether misdirection as to mental element – statutory construction – use of extrinsic materials – where trial Judge circulated draft directions – where directions accorded with the appellant’s submissions at trial – change of approach on appeal – whether rule 4 applies – element of the offence – important question of principle CRIMINAL LAW – evidence – admission of evidence over objection – lay opinion evidence – where victim permitted to give evidence of appellant’s state of mind – notes made by victim – exception to hearsay rule – whether exception extended to note concerning appellant’s intention – where opinions stated in absolute terms – where opinion went to central issue in the trial – evidence inadmissible CRIMINAL LAW – appeal – whether re-trial should be ordered – where verdict not unreasonable – where appellant served most of Intensive Corrections Order – where appellant elderly – verdict of acquittal entered

APPEAL – sentence appeal – where communications sent via Skype of child pornography material in written form – where communications sent via Skype of indecent material to persons under the age of sixteen – where possession of child abuse material – where no victims of offence of sending child pornography in written form – whether error in assessment of objective seriousness – whether sentences imposed manifestly excessive

COSTS – costs assessment – successful appeal to District Court under s 89 Legal Profession Uniform Law Application Act 2014 (NSW) – application for judicial review – where asserted jurisdictional error in District Court failing to conduct appeal “by way of rehearing” – where application brought out of time – where interests of justice do not favour extension of time – application dismissed.