Cases and authorities

ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – District Court appeal – conviction and sentence –apprehended violence order – whether District Court committed jurisdictional error CIVIL PROCEDURE – Court of Appeal – extension of time to file summons under UCPR r 59.10(2)

CRIME — public justice offences — do an act with intent to pervert course of justice — Crimes Act 1900 (NSW) s 319 — elements of offence — whether act or omission said to constitute the offence must have a tendency to pervert the course of justice

CORPORATIONS – winding up – application to terminate winding up of company – where undertakings provided to do specified acts – where liquidator placed in funds to meet debts of company – where no creditors opposed termination of winding up.

COSTS – whether compromise as to plaintiffs’ secondary case entitles plaintiffs to their costs – definition of “event” in principle that costs follow the event – plaintiffs withdrew claim for principal relief shortly prior to hearing – no issue as to alternative relief – appropriate that each party pay own costs

CIVIL PROCEDURE — Subpoenas and Notices to Produce — Application to set aside ––where wording and timeframe were too broad and extended beyond a legitimate forensic purpose –– where breadth of documents sought in subpoena and notice to produce had tendency to subvert Practice Not SC Eq 11 –– subpoena and the notice to produce set aside

JUDGMENTS – setting aside judgments – Uniform Civil Procedure Rules 2005, r 36.15 – whether order entered “irregularly, illegally or against good faith” – a claim for family provision brought under the Succession Act 2006, Part 3 is settled as between the executor of the estate and a grandchild of the deceased – orders entered between the executor and the grandchild – beneficiary of the estate notifies the Court at the time of entry of the orders that he does not consent to the entry of the orders – orders entered – non-consenting beneficiary seeks within the time allowed by Uniform Civil Procedure Rules, r 36.15 to set aside the orders – whether the orders were entered “irregularly, illegally or against good faith” – whether “sufficient cause” has been shown to set aside the orders.

CRIMINAL LAW – Sentencing – murder – considerations for court to take into account – criminal record – moral culpability – requirement not to impose fresh penalty for past offending – requirement to give full weight to profound childhood deprivation – contrition and remorse – not made out on balance of probabilities – limited prospects of rehabilitation – recidivous homicide – absence of remorse – danger presented to society – requirement that facts relied upon in sentencing must be established beyond reasonable doubt CRIMINAL LAW – Principles of sentencing – denunciation – retribution – general deterrence – specific deterrence attenuated by moral culpability SENTENCING – Special circumstances – whether statutory ratio between the non-parole period and additional term to be altered – statutory ratio maintained – non-parole period 20 years – additional term 6 years

CORPORATIONS — Winding up — Trading whilst insolvent — Action against directors for compensation under s 588M of the Corporations Act 2001 (Cth) — Whether presumption of insolvency arises for failure to keep proper books and records — Whether privilege against self-incrimination is defence to non-compliance with s 530A — Privilege against self-incrimination and s 588E — Whether actual insolvency — Compensation where successive directors — Whether directors should be jointly liable for debts incurred during directorship of former directors — Assessment of compensation according to when debts incurred.

SUCCESSION - executors and administrators – administration – proceedings brought by a joint executor against a second joint executor – whether amounts paid by deceased to one joint executor were repayable as loans to the estate – alleged binding and enforceable contract for the distribution of certain estate assets in fact constituted a claim seeking to oblige an executor to exercise their powers subject to contract. CONTRACTS — Formation — Incompleteness – alleged oral agreement said to be later affirmed was not established by evidence before the Court – alleged agreement would require executor to administer estate according to terms of alleged contract – office of executor cannot be bound by contract in absence of all affected parties’ agreement.

COSTS – costs in criminal cases – acquittal of applicant in judge alone trial – inferences available inconsistent with guilt – not unreasonable to prosecute knowing all the evidence adduced

CIVIL PROCEDURE – summary dismissal – striking out of statement of claim – where Independent Commission Against Corruption made findings plaintiff acted corruptly – where findings were referred to Director of Public Prosecutions but no charges laid – where plaintiff brought judicial review proceedings against those findings and lost – whether Independent Commission Against Corruption’s report ultra vires – whether statement possessed by the Independent Commission Against Commission when it made findings exculpatory and/or improperly withheld – whether proceedings have no prospect of success – whether claim improperly pleaded and inadequately particularised – Uniform Civil Procedure Rules 2005 (NSW) rr 13. 4, 14.28 TORTS – misfeasance in public office – where plaintiff seeks declaration that defendants engaged in misfeasance in public office – whether Independent Commission Against Corruption’s correspondence with the DPP malicious, or reckless with intent to cause injury, reputational and financial harm – whether conduct beyond power – whether foreseeable risk of harm

LAND LAW – strata title ­– leasehold strata scheme – enforcement of statutory warranties – whether holder of a 99-year lease a “successor in title” under the Home Building Act 1989 (NSW)

APPEAL – conviction – mental impairment defence – new evidence – psychiatric evidence from second trial – leave to appeal – out of time application – mental impairment found regarding similar counts – psychiatric evidence covers some period in first trial – unable to reason with moderate degree of composure – moral wrongfulness – mental illness – special verdict not guilty

CRIME – appeal against sentence– where discount for utilitarian value of guilty plea in sentence for federal offence not taken into account – where error conceded by Crown – need to resentence SENTENCING – terrorist offence – conspiracy – preparation and planning of terrorist act or acts involving threat to human life – objective seriousness – significance of punishment, deterrence and protection of the community – mitigating factors – youth (14 years and 2 months at time of offending) and prospects of rehabilitation

CRIME – appeal against conviction - whether wrong decision on a question of law – whether expert evidence should have been excluded – relevance of evidence – probative value of evidence - IMM v R The Queen (2016) 257 CLR 300; [2016] HCA 14 applied CRIME – appeal against conviction - whether wrong decision on a question of law – whether admissions should have been excluded by trial judge – where point not raised below – where clear warnings given to accused prior to admissions CRIME – appeal against conviction – whether unreasonable verdict – whether, on the evidence at trial, jury’s verdict was reasonably open CRIME – appeal against sentence – aggravated dangerous driving occasioning death – aggravated dangerous driving occasioning grievous bodily harm – manifest excess- objective seriousness – special circumstances

CRIMINAL LAW - sentencing - domestic violence offences - State and Federal offences - aggravating features - weight to be given to psychological report - whether sentence manifestly excessive - error of fact conceded by the Crown - error of law conceded by Crown - parole order revoked - whether applicant at liberty on parole - whether applicant subject to conditional liberty after revocation of parole -commission of offences while on conditional liberty not relevant to assessment of objective seriousness of offence - whether some other sentence is warranted in law - correct approach to resentencing after error found

CRIMINAL LAW – jury request for transcripts of summing up – transcript of closing addresses already provided – no provision in Jury Act – discretion to provide – not long trial but precision regarding legal tests for substantial impairment - careful and thorough addresses – where summing up canvassed definitions of “abnormal”, “substantial” and “impairment” in case where substantial impairment is the issue – discretion exercised to comply with jury request

JUDICIAL REVIEW – Administrative law – decision of State Parole Authority (SPA) to grant parole – whether jurisdictional error or error on face of record – whether failure to have regard to mandatory consideration of effect on members of families of deceased persons of offender being released to parole, pursuant to s 135(3)(d) of the Crimes (Administration of Sentences) Act 1999 (NSW) (the Act) – whether reasons of SPA adequate pursuant to s 193C(2)(a) of the Act – decision of SPA quashed

CRIMINAL LAW – sentencing – manslaughter – offender found not guilty of murder – no intention to cause really serious injury – unlawful and dangerous act – detention of victim for several days – series of assaults during detention – victim homeless alcoholic – victim vulnerable – financial motivation of detention–assaults caused by frustration and temper – treatment of corpse – impact on victim’s daughter – victim gave best life advice – all life precious – all life equal CRIMINAL LAW – sentencing – conspiracy to murder – motivation to interfere with missing person or homicide investigation – offender instructs stepbrother to murder a potential witness – plan to give witness a “hot shot” – maladroit effort to carry out plan – accumulation of sentences – totality of criminality – special circumstances

CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – joint criminal enterprise – drug deal gone wrong – organised and brutal attack – where offender acted as driver and played a limited role in the offence – extensive and long standing drug dependence – no previous offences of violence – positive finding of remorse – good prospects of rehabilitation – guilty plea – valuable assistance to authorities – total discount of 50% – finding of special circumstances

REPRESENTATIVE PROCEEDING – CIVIL PROCEDURE – multiplicity of proceedings – whether commencement of subsequent proceedings an abuse of process – application of case management principles – consideration of relevant factors to determine what is in best interest of overall group members

COSTS – offer of compromise – defendant offered to pay plaintiff $100,000 in settlement of its claim – defendant ultimately successful after trial - whether genuine offer of compromise – whether presumptive entitlement to special costs order made out – whether Court should otherwise order – special costs order in favour of defendant ordered

BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether multiple payment claims served in respect of one reference date – whether multiple supporting statements issued in respect of one payment claim – whether more than one supporting statement could be provided in respect of a single payment claim

COSTS – Application for Suitors’ fund certificate – statutory threshold not met – section 6C not a matter for a court – refuse application for certificate

CIVIL PROCEDURE – pleadings – where plaintiffs seeks leave to file further amended statement of claim – whether leave should be refused because the amendments are allegedly futile – whether rejection of amendments is appropriate without detailed analysis of whether alleged duty exists – whether defendants will suffer prejudice if amendments allowed – leave to file amendments allowed

ADMINISTRATIVE LAW – Judicial Review – Review of decision of Proper Officer that there was no reasonable cause to suspect that a medical assessment was incorrect in a material respect – Where plaintiff had undergone hip replacement pre-accident – Where hip replacement was revised as a consequence of accident – Where medical assessor concluded that the plaintiff had suffered no whole person impairment as a consequence – Where Proper Officer had refused an application for a referral of the matter to a medical panel for review – Whether the decision of the Proper Officer was legally unreasonable – Operation of impairment guidelines and medical assessment guidelines – No error established – Proceedings dismissed

OCCUPATIONS – legal practitioners – penalty appeal – whether the Tribunal erred in removing the solicitor’s name from the roll – failure to make costs disclosures and provide costs agreement to clients – causing deficiencies in trust account – misappropriation of trust monies – applying received monies in breach of the terms of agreement under which they were received – overcharging – purporting to act as executor when no grant of probate – purporting to act as attorney when donor of power was deceased – breach of costs disclosure undertakings given to Legal Services Commissioner – failure to comply with Supreme Court order – Legal Profession Act 2004 (NSW) – Legal Profession Act 1987 (NSW) OCCUPATIONS – legal practitioners – whether a case of dishonesty had been pleaded or conducted – whether findings made by the Tribunal of dishonesty were open – whether findings made by the Tribunal that the appellant knew he was acting dishonestly were open

COSTS – whether unsuccessful appellant should pay respondents’ costs – whether litigation was brought in the public interest – whether “something more” shown so as to displace ordinary operation of rule – whether more than one set of costs should be ordered

CRIMINAL LAW – murder trial – closing addresses – written direction “Elements of Partial Defence of Substantial Impairment”– consideration of fifth element – jury assessment of whether the impairment was “so substantial” at the relevant time as to warrant liability for murder being reduced to manslaughter

CRIMINAL LAW - murder trial - application by Crown before trial for non-publication and pseudonym orders - whether orders sought necessary to protect safety of persons - “calculus of risk” approach - orders made

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1900 (NSW) – forensic patient with limiting term about to expire – chronic paranoid schizophrenia and mild intellectual disability – where offending followed non-compliance with medication – need for assessment and treatment – application for interim extension of status as a forensic patient and examinations – interim extension order for 3 months and order for examinations made

COSTS – where first defendant filed a submitting appearance in the primary matter – where first defendant took no active part in primary matter – costs sought by plaintiff – ordinary rule for costs – basis to vary the ordinary rule

CIVIL PROCEDURE – Pleadings – Striking Out – whether form and content of pleadings defective – embarrassing pleadings – insufficient or inadequate particulars – whether reasonable cause of action disclosed

RELIEF HEARING – contest concerning consequential orders after a principal judgment – Court declines an application to revoke a grant of probate to the defendant and dismisses the plaintiff’s claim for provision out of the deceased’s estate under Succession Act 2006, s 57 – plaintiff ordered to repay monies the deceased advanced to the plaintiff before the deceased’s death and to repay other monies removed from the deceased’s estate after the deceased’s death – several consequential issues arise from the first judgment: (1) some preliminary issues; (2) whether any damages are payable to the estate by the plaintiff; (3) whether the additional parties to the debt/trust proceedings, Mr Gokan Yesilhat and the company Australia’s Best Tyres Pty Limited, should also repay the loan monies the subject of existing findings against the plaintiff; (4) whether costs orders should be made against Mr Gokan Yesilhat and Australia’s Best Tyres; and (5) whether orders for indemnity costs should be made against any party.

COSTS – appeals – appellants made Calderbank offer in relation to proceedings at first instance – offer rejected – no separate offer made in relation to costs of appeal – costs of appeal determined by reference to outcome of appeal – appellants’ recoverable costs capped

SENTENCING – appeal against sentence – whether offences aggravated within pars (m), (n) or (o) of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – sentencing judge did not hold offences so aggravated – alternatively, if offences were held to be aggravated within s 21A(2)(m), (n) or (o), error in exercise of discretion – no lesser sentence warranted

CRIMINAL LAW – EVIDENCE – admissibility – lay opinion evidence – whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness’s perception of the matter or event – exclusion 135

FAMILY LAW — Children — Adoption – application to amend particulars in adoption order by inserting mother’s maiden name – amendment said to be necessary to obtain a fresh New Zealand birth certificate for the adopted child.

COSTS – whether amount paid to Ms Drinkwater from a bank account should be deducted in calculating damages payable to her – whether amount paid is only a relevant factor in determining the extent to which judgment entered has been satisfied COSTS - whether Mortgage granted by Ms Drinkwater to Mr Nadinic pursuant to the Settlement Deed should secure the sum of $2,050,000 that was provided for in the Settlement Deed – whether the Mortgage should be varied such that it secures only the balance owing to Mr Nadinic after the payment of damages owing

CIVIL PROCEDURE – separate determination of questions – application based on alleged res judicata, issue estoppel and Anshun estoppel – where evidence nearly complete – where separate questions will raise questions of fact – risk of fragmentation of proceedings – application for separate questions refused

CORPORATIONS – members’ rights and remedies – oppression – orders to be made.

HIGH RISK OFFENDER – application for extended supervision order – preliminary proceedings – question of risk – whether “unacceptable risk” established – no point of principle

CIVIL PROCEDURE – where plaintiff claims damages for personal injury – where plaintiff failed to appear – where defendants applied for dismissal of proceedings for want of due despatch – where defendants’ application not supported by notice of motion or affidavit – application dismissed

SUCCESSION – Construction of will – Meaning of “descendants” and “children” – Descendants of siblings who have been adopted – Descendants of siblings who have been adopted out – Rectification of will

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – proceedings resolved between parties following decision in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 on meaning of permanent impairment within ss 65 and 66 of the Workers Compensation Act 1987 (NSW) – consent orders made

COSTS – security for costs – balance with danger of stifling hearing – plaintiff is a company – impecuniosity – directors’ capacity to support

CRIMINAL TRIAL – media access – application to access CCTV footage and video of the accused interview with police – open justice principle

ADMINISTRATIVE LAW – judicial review – non-reviewable actions –open to decision-maker to regard transfer of police officer as non-disciplinary – no error of law demonstrated – summons dismissed STATUTORY INTERPRETATION – privative provisions – ss 88 and 213 of Police Act 1990 (NSW) – insufficiently clear to exclude judicial review STATUTORY INTERPRETATION – meaning of “non-disciplinary transfer” in Police Act 1990 (NSW) – whether adverse financial impact on officer determinative – relevance of extrinsic materials – whether transfer “non-disciplinary” is informed by Commissioner’s reasons and context in which transfer is ordered – loss of allowances not determinative where no change in rank or grade

CRIME – Criminal liability — Mental illness defence – proved – no issue of principle

SUCCESSION – Wills, probate and administration –Validity of last Will of the deceased made in 2015 – No question of lack of testamentary capacity of the deceased – Lack of knowledge and approval of 2015 Will alleged – Suspicious circumstances rule – Whether the deceased knew and approved of the contents of the 2015 Will – Undue influence alleged – Whether the deceased was coerced by her husband into, and did not intend the disposition of the whole of her estate to him, in the 2015 Will – No dispute that if 2015 Will is not last valid Will of the deceased, an earlier Will made by her in 2007 is the last valid Will UNDUE INFLUENCE – Consideration of operation and potential interaction and comparison of undue influence in probate and equity – Whether equity might apply, or extend, its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a Will to a constructive trust in favour of beneficiaries of earlier Will SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by each of four adult children of the deceased in the event that the 2015 Will is the last valid Will of the deceased – The Defendant, the executor named in the 2015 Will of the deceased, her husband of over 50 years and the father of each of the applicants for provision – Actual estate reasonably large – No notional estate – Whether adequate and proper provision not made in Will of the deceased for each of the children – Nature and quantum of provision, if any, that ought to be made for each of the Plaintiffs – Two of the children settle her, and his, dispute, respectively, before, or during, the hearing, in the event that 2015 Will is the last valid Will of the deceased – What order, if any, for each applicant for a family provision order should be made PRACTICE AND PROCEDURE – Agreement that all of the proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) rule 28.5 – some common questions and otherwise desirable to make an order under this rule