Cases and authorities

CRIMINAL LAW – sentence – manslaughter – where originally charged with murder – where death caused by unlawful and dangerous act – where act was intentional – where act carried appreciable risk of serious injury – where guilty plea entered at a late stage – where limited evidence of remorse – where good prospects of rehabilitation – domestic violence

CONTRACT - real estate agent buyers agreement - entitlement to commission - agreement between property developer and real estate agent - agent to acquire options over seven contiguous parcels of land - options acquired over some of land - options never exercised by developer - agent rendered invoices for commission as options acquired - some invoices paid - whether agent entitled to commission for obtaining options which were never exercised MISLEADING AND DECEPTIVE CONDUCT - agent made demands for commission - whether demands misleading or deceptive contrary to s 18 Australian Consumer Law - whether demands were expressions of opinion of agent's legal entitlement

CRIMINAL LAW – Sentencing – whether there had been a failure to take into account the utilitarian value of an early guilty plea upon sentencing – whether error as to assessment of objective seriousness of offences.

CRIMINAL LAW – sentence appeal – ongoing supply of cocaine, dealing with the proceeds of crime – pleas of guilty – in respect of each count further offences taken into account on a Form 1 – one of the offences taken into account not established on the agreed facts – on each count one of the offences taken into account was on the Form 1 referable to the other count

CRIMINAL LAW – s 5F appeal – interlocutory judgment or order – whether trial judge erred by failing to correct a plea of guilty entered by counsel on behalf of the accused under the slip rule JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule ADMINISTRATIVE LAW – bias rule – apprehended bias – application of “double might” test

CRIME – Appeals – Appeal against sentence – application of Bugmy principles where offender now living prosocial life – impact of disadvantaged and dysfunctional background long-lasting and continuing – link between background and poor decision-making consistent with offending CRIME – Appeals – Appeal against sentence – failure to take into account a relevant consideration – remorse – no explicit submission but concession by prosecutor and strong basis for finding – error established TRAFFIC LAW AND TRANSPORT – Traffic Law – licensing of drivers – disqualification – effect of imprisonment on licence disqualification

CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – s 38 Evidence Act – leave to cross-examine the witness about specific paragraphs of statement to police and transcript of listening device recording – unfavourable witness – whether the witness has appeared to make a genuine attempt to give evidence – whether the witness has knowledge of matters – prior inconsistent statement of witness

Stay of Writ of Possession – no question of principle

Payment into Court – funds held by solicitor in trust account pursuant to Family Court orders between former client and husband – Trustee Act, s 95 – quantification of costs

COSTS – incidence of costs – family provision claim – amount of provision within District Court’s jurisdictional limit – whether plaintiff to be deprived of costs under UCPR r 42.34 COSTS – incidence of costs – family provision claim – informal offer – whether plaintiff’s rejection of offer reasonable

SUCCESSION – family provision – claim by adult child for provision from deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – the Defendant, is also an adult child of the deceased, the sole executor to whom Probate was granted, and one of a number of beneficiaries named in the Will of the deceased –provision made in Will for the Plaintiff as discretionary object of a testamentary trust – whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made for him – the Plaintiff suffering depressive illness – allegation that Plaintiff would dissipate any provision made for him – order for provision made in lieu of provision made for the deceased in the Will – whether the interposition of a trust for the Plaintiff should be maintained – condition imposed upon part of the provision made for the Plaintiff EVIDENCE – course of evidence – re-opening case – late application by counsel – where nature of the application is unclear — whether leave should be granted to re-open or re-examine PRACTICE & PROCEDURE – communication with the Court after hearing concluded and judgment reserved

COSTS — Party/Party — General rule that costs follow the event applicable to applications for security for costs — interlocutory dispute — where each party had a measure of success — no order as to costs PRIVATE INTERNATIONAL LAW — Foreign judgments and orders — costs otherwise reserved pending outcome of appeal against foreign judgment

HIGH RISK OFFENDER – application for extended supervision order – defendant sentenced for grievous bodily harm with intent to cause grievous bodily harm – risk of committing a serious violence offence – reports from two court-appointed psychiatrists – various statistical measures of risk – HRC 20 (version 3) measurements of dynamic and static risk – defendant’s employment history – willingness to engage with psychological treatment – defendant’s living arrangements and interpersonal relationships

HIGH RISK OFFENDER – terrorism activity offender – final hearing – application for extended supervision order – interim supervision order previously made – whether “unacceptable risk of committing terrorist offence” if released – summons dismissed and interim supervision order discharged

CONTRACTS – parties – whether all parties to contract must be joined CONTRACTS – breach of contract – whether breach of an obligation to “procure” a result where no time specified for compliance with the obligation CONTRACTS – remedies – specific performance – whether damages provide an adequate remedy

CORPORATIONS – voluntary administration – co-operative registered in New South Wales under Co-operatives National Law – application of Pt 5.3A Corporations Act 2001 (Cth) to a co-operative – application for directions – Insolvency Practice Schedule (Corporations) s 90-15 – whether relevant provisions of Insolvency Practice Schedule and Insolvency Practice Rules (Corporations) 2016 broadly equivalent to repealed provisions of Pt 5.3A Corporations Act 2001 (Cth) and Corporations Regulations 2001 (Cth) – direction given under s 90-15 CORPORATIONS – voluntary administration – whether operation of Pt 5.3A should be modified in relation to the administration of a co-operative – whether new provisions of Insolvency Practice Schedule and Insolvency Practice Rules should apply to administration of co-operative – order made under Corporations Act s 447A

SUCCESSION — Trusts and trustees — application for judicial advice by administrator ad litem as to whether it is reasonable to continue to prosecute certain appeal proceedings

BUILDING AND CONSTRUCTION – Breach of statutory warranties in the Home Building Act 1989 (NSW), s 18B –Whether 2014 amendments to s 18E Home Building Act 1989 (NSW) retroactive – Expert evidence not compliant with Uniform civil Procedure Rules 2005 (NSW) – Where plaintiffs delayed in repairing defects – Availability of damages for Solatium

CRIMINAL LAW – sentence – engaging in hostile activity in foreign country – where 23 year old offender travelled to Syria to oppose Assad regime – where offender remained in Syria for approximately four months – where decision influenced or inspired by Islamic State recruiting propaganda – whether offender actually engaged in combat – whether risk of committing acts of domestic violence upon return to Australia – where details of offender’s activities in Syria significantly derived from his own evidence – whether offender now holds radical religious views – where good prospects of rehabilitation

APPEALS – application for leave to appeal against refusal of leave for tutor to conduct proceedings without engaging a solicitor – UCPR r 7.14(2)

CIVIL PROCEDURE – application for extension of time to file summons seeking leave to appeal – application refused – no issue of principle

EVIDENCE – privileges – client legal privilege – litigation – whether communications from the plaintiff’s solicitor to the plaintiff and copied to the plaintiff’s forensic accountant privileged – whether such privilege waived

URGENT HEARING – husband of plaintiff just passed away – whether plaintiff has validly authorised spermatozoa removal for IVF treatment – Human Tissues Act 1983, s 24

PRACTICE & PROCEDURE – application to vary timetable for the service of evidence – no issue of principle

PROCEDURE – Contempt – whether criminal or civil contempt – breach of undertakings – elements of civil contempt – potentially inconsistent undertakings – whether acts and omissions deliberate or wilful – whether presence in court at time of undertaking necessary – whether misunderstood – whether monies used for benefit of company – appropriate penalty – indemnity costs

APPEAL – application for expedition and stay – no issue of principle

APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault

SUCCESSION – family provision – competing interests of disabled adult son and elderly widow – whether provision ordered in favour of son manifestly excessive – whether “adequate weight” given to widow’s claim to continue to reside in former matrimonial home – appeal dismissed

APPEAL – whether power of attorney from party confers right to appear on behalf of the party – Notice of Motion dismissed

COURTS - jurisdiction - proceedings between former de facto partners in Supreme Court concerning ownership of property – primary claim in equity – alternative claim under Family Law Act 1975 (Cth) – primary judge upholds claims in equity and makes contingent findings under Family Law Act – defendant files appeal confined to challenging orders based in equity – plaintiff/respondent files notice of contention based on Family Law Act contingent findings – whether appeal lay to Court of Appeal – whether even if appeal required to be instituted in Court of Appeal, notice of contention required its transfer to Family Court – prohibition on instituting and determining certain appeals in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 construed and applied – appeal transferred to Family Court

APPEALS - time for commencing appeal - orders made dismissing applicants’ claims - costs orders made months later - whether time for appeal only ran from costs orders - whether applicants should have an extension of time - whether applicants had sufficiently explained delay - extension of time for appeal refused JUDICIAL REVIEW – applicants’ land claimed to be affected by Minister’s plan made under Water Management Act 2000 (NSW) - applicants brought judicial review proceedings challenging numerous decisions including making of the Minister’s plan - proceedings dismissed as not brought within 3 months as required by s 47 - application to reopen after judgment reserved refused - all bases of judicial review rejected - whether primary judge erred in finding proceedings statute-barred - whether Minister entitled to make decisions to make a plan at “high level” - whether Minister had duty to classify water sources of the State - whether first applicant should have been issued with a licence expressed in terms of unregulated water - whether error in refusing application to adduce further evidence - extension of time for appeal refused

CRIMINAL LAW – directions to jury – lies as supporting an inference of guilt – general direction as to lies – whether excessive self-defence should be left to the jury – no evidentiary foundation for supporting excessive self-defence

CIVIL PROCEDURE — Subpoenas — Application to set aside COSTS — Party/Party — where orders made by consent — where defendant’s position made clear to plaintiff prior to filing of notice of motion — plaintiff’s ultimate agreement a capitulation

CIVIL PROCEDURE – late application for adjournment – application for costs thrown away by reason of adjournment – costs order made

COSTS — Party/Party — General rule that costs follow the event – whether any reason to depart from the general rule – appeal not a reason to defer making costs order – no disentitling conduct made out

CIVIL PROCEDURE – settlement of proceedings – disable plaintiff – application for approval – whether proposed settlement in best interests of plaintiff – whether plaintiff’s future loss of earning capacity adequately taken into account – approval refused

HIGH RISK OFFENDER – application for interim supervision order pending final hearing – application for order for examination by medical professionals – defendant on parole for murder after spending over 21 years in continuous custody – staunch denial of offence – limited rehabilitative progress made in custody – interim supervision order and order for examinations made

COSTS – application for indemnity costs

APPEAL – application for leave to appeal from summary dismissal of proceedings – proceedings dismissed because rights to sue vested in applicants’ trustees in bankruptcy, and because of earlier litigation – no basis for grant of leave – in any event, any appeal would lie to Federal Court by reason of s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

CIVIL PROCEDURE – commencement of proceedings – statement of claim – application for extension of time for service pursuant to Uniform Civil Procedure Rules, r 1.12 – ex parte – appointment of a special purpose liquidator by the Federal Court – prejudice caused to the defendants in granting extension does not outweigh prejudice to plaintiffs if extension not granted – time for which statement of claim can be served extended for six months

CORPORATIONS — Winding up — Liquidators — Status

CRIMINAL LAW – Juries – Misconduct – Juror falling asleep and failing to pay attention – Whether juror should be discharged – Whether trial should continue with a jury of eleven

JUDGMENTS AND ORDERS – enforcement – application made to review a Registrar’s decision not to order the payment of a judgment by instalments stay of the enforcement of a judgment pending the determination of an application for an instalments order – applicant has been served a bankruptcy notice to be paid within 21 days and failure to pay the debt will entitle the judgement creditor to seek a sequestration order – whether the making of an instalment order will be more conducive to the judgment creditor achieving payment in full in a reasonable time.

APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d)

APPEAL – extensions of time to file Notices of Appeal refused – no arguable basis for appeals from judgments awarding damages for defamation and finding contempt for breach of injunction against further publication – whether sealed copy of orders required to be served for purposes of contempt proceedings

FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parents ought to be dispensed with – contact – adoption plans – change of name

CIVIL PROCEDURE — Separate determination of questions — whether appropriate

EQUITY – equitable interest in property – agreement for equal ownership of property – not recorded on title – contributions to property –– account for share of proceeds of sale EQUITY – general principles and maxims – they who seeks equity must do equity – false claim Commonwealth rental assistance – repayment of monies, interest and penalties as a condition of relief EVIDENCE – Jones v Dunkel inference – failure to produce witnesses – equally available to both parties

REAL PROPERTY - mortgagee claim for possession of land arising from alleged default under mortgage - application by mortgagees for summary judgment seeking order for possession - whether any arguable defence to claim for possession - mortgagors allege conduct by mortgagees which prevented payments due under loan agreement and mortgage - conduct complained of by mortgagors post dated entry into loan agreement and mortgage - held claim of mortgagors did not impeach mortgagee’s title - no arguable defence to claim for possession - summary judgment granted to Plaintiffs

CRIMINAL PROCEDURE – suppression order - suppression order no longer necessary – revoked – no point of principle