Cases and authorities

APPEALS – only on question of law – Local Court struck out plaintiff’s claim for want of jurisdiction – claim for monies paid to defendant alleged to constitute overpayment – jurisdiction of Workers Compensation Commission – jurisdiction of Local Court not excluded

CRIMINAL LAW – Murder – Sentence – Where two persons killed pursuant to a joint criminal enterprise to which the offenders were each a party – Findings of fact – Where Crown case based largely upon two indemnified witnesses – Inconsistent evidence – Necessity to find facts consistent with the verdicts of the jury – Whether life sentence appropriate – Where the evidence did not establish that the offending fell into the category of a “contract killing” – Where evidence did not distinguish between the culpability of the offenders – Aggregate sentence imposed in each case

REFERRALS – case management – matter listed for hearing CIVIL PROCEDURE – Court of Appeal – stay of orders

APPEAL – leave – defendant sought leave to appeal from leave granted pursuant to Workers Compensation Act 1987 (NSW), s 151D – whether error of principle – whether material error in application of principle to facts – significance of arguments now sought to be advanced which were not put to primary judge – leave refused

APPEALS – appeal confined to damages – concession that appeal should be allowed – whether remitter necessary – powers of Court of Appeal to make findings of fact – desirability of avoiding retrial NEGLIGENCE – occupier’s liability – object fell on plaintiff’s shoulder while in premises – occupier did not challenge liability – appeal limited to damages – plaintiff had undergone shoulder surgery shortly beforehand – absence of findings of fact by primary judge as to circumstances of the accident – whether on the basis most favourable to plaintiff, she had established injury from occupier’s negligence – smaller judgment substituted

CRIMINAL LAW – appeals – appeal against conviction – appellant found guilty of murder – sentenced to 20 years with a non-parole period of 15 years – whether the jury’s verdict was unreasonable – where the Crown case relied heavily upon the testimony of one witness and there were contradictions in the witness’ evidence – whether an out of court statement containing hearsay evidence of an admission should have been admitted as proof of the truth of the admission – s 60(3) Evidence Act 1995 (NSW) – where the witness subsequently affirmed the truth of the statement in court – whether leave should have been granted to cross-examine witness in accordance with s 38 Evidence Act 1995 (NSW) – where the s 38 application was for the purpose of leading admissions – whether in granting leave to cross-examine the trial judge duly considered s 192 Evidence Act 1995 (NSW) – where the trial judge did not specifically refer to s 192 but argument in the course of the trial demonstrated that s 192 was considered – whether the sentencing judge gave an appropriate direction about the reliability of a witness – s 165 Evidence Act 1995 (NSW) – where trial counsel for the appellant accepted that the witness was not criminally concerned in the events giving rise to the proceedings – where trial counsel for the appellant sought to rely on parts of the evidence of the witness – where no alternative direction was proffered at trial or on appeal

CRIMINAL TRIAL – application for leave to re-open after jury has commenced deliberations – purpose of additional evidence to correct errors in documentary evidence pertinent to question asked by jury – leave not opposed – leave granted and direction given

CIVIL PROCEDURE — Interim preservation — Freezing orders

CONTEMPT – power of committal – exercise of inherent power of the Court as distinct from application of the Crimes (Sentencing Procedure) Act 1999 (NSW). CONTEMPT – order for punishment for contempt - Supreme Court Rules 1970 (NSW), Part 55, Rule 13 - factors relevant to punishment – wilful disobedience to orders of the Court – failure to deliver up six vehicles –continued false assertions by ninth defendant that he lacked control of the vehicles.

COSTS – offer of compromise – where made in proceedings for judicial review – failure to specify proposed orders for disposal of the claim – Calderbank offer – whether unreasonable not to accept offer

EVIDENCE – client legal privilege – criminal charges pending against plaintiff – execution of search warrant at office of solicitor – whether documents the subject of claim for privilege should be inspected by judge – whether claim for privilege has been affirmatively established – claim upheld – declaration made

ADMINISTRATIVE LAW – judicial review – costs in summary criminal proceedings – application by successful defendants for costs against police after all charges dismissed in summary criminal proceedings – whether Magistrate committed jurisdictional error in refusing costs – summons dismissed

CIVIL PROCEDURE – adjournment application – granted

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act – motor vehicle accident – medical dispute – medical assessments – application for reference to further medical assessment to proper officer – application to Claims Assessor – whether proper officer decision reviewable after application to Claims Assessor – nature of discretion of claims officer – whether misunderstood scope of discretion and powers – proper officers decision – whether failure to have regard to relevant consideration – whether constructive failure to exercise jurisdiction – futility – orders

LIMITATION OF ACTIONS – negligence – discoverability limitation period – Limitation Act 1969 (NSW), ss 50C and 50D – whether plaintiff knew or ought to have known of the fact that the injury was caused by the fault of the second defendant – whether plaintiff’s belief that farmer who owned bull and adjoining land had left gate open sufficient – neither availability of admissible evidence to prove case nor reasonable prospects of success for claim relevant factors under s 50D – cause of action statute-barred NEGLIGENCE – collision between road train and Black Angus Bull – consideration of key factors necessary to establish liability

CIVIL PROCEDURE — Pleadings — Notice of Motion to file an Amended Defence – public and private nuisance claims – whether the claims are ”apportionable claims” – whether the court should strike out a proportionate liability defence at this stage of the proceedings

HIGH RISK OFFENDER – serious sex offender – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – interim supervision order sought – defendant also subject to Child Protection Prohibition Order – whether matters, if proved, would satisfy Court to high degree of probability that defendant poses unacceptable risk of committing another serious offence – consideration of psychiatric reports and Risk Assessment Reports – no serious sexual offence committed since 2011 – history of breaching good behaviour bonds, parole and extended supervision orders – interim orders made

CIVIL PROCEDURE – specialist lists - Possession List – pleadings – form and content of pleadings – leave sought by the defendants to file a further amended defence and a proposed first cross-claim – where the existing defence was unsatisfactory – where the defendants had been given a number of opportunities to plead a cross-claim and properly plead a defence – where the defendants had caused significant delay in the proceedings – where no explanation for the delay - where the filing of the proposed cross-claim would cause significant prejudice to the plaintiff/first cross-defendant – where the pleading of the cross-claim bundled representations and asserted that those representations as a whole caused loss – such a pleading deemed embarrassing – pleading in cross-claim not supported by particulars – defendants not given leave to file the proposed cross-claim – existing defence struck out – defendants permitted to file amended defence

LAND LAW – possession of land – application for summary judgment – mortgage given by the defendants as guarantors of a loan agreement – default of loan and mortgage obligations by defendants - whether defendants entitled to redeem the mortgage – whether an intention to sell the property is an offer of redemption – assignment of mortgage – no notice of assignment given – transfer of mortgage registered – no notice of assignment necessary to perfect assignment – ss 51 and 52 Real Property Act – whether a requirement of plaintiff to plead service of s 57(2)(b) notice – whether summary judgment should be granted – defendants’ defences disclose no defence to the claim for possession – summary judgment given

ADMINISTRATIVE LAW - Judicial Review - Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether Medical Appeal Panel was correct to apportion whole person impairment – whether the Medical Appeal Panel has to identify and state its diagnosis of the plaintiff’s condition

ADMINISTRATIVE LAW – refusal to direct inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court ADMINISTRATIVE LAW – judicial review – grounds of review – where decision is substantially similar to a party’s submissions – whether judge failed to consider submissions – whether judge formed the relevant opinion – whether reasons were inadequate – whether justice seen to be done

TORTS – Negligence – Appellant employed as picker packer at product distribution centre – Whether primary judge erred in finding that host employer breached duty of care to appellant by requiring him to pick heavy cartons stored at low height – Whether breach of duty causative of appellant’s harm – Whether error in finding of contributory negligence in circumstances where worker required to adopt system of work – Whether primary judge erred in accepting evidence that appellant’s pain syndrome was caused by physical injury – Appeal allowed

CIVIL PROCEDURE – interlocutory orders – application for leave to appeal – importance of maintaining tight rein on procedural appeals – respect for overriding principle – whether proposed appeal more than merely arguable CIVIL PROCEDURE – search orders – potential evidence seized and preserved – solicitors and officer of corporate applicant granted access – application by applicants for unrestricted access to material seized – proceedings not initiated – whether proposed access for purpose of discovery

CRIME – conviction appeal – incompetence of counsel – alleged failure of counsel to recall the complainant – alleged failure of counsel to seek a direction from the trial judge about recent invention – alleged failure of counsel to seek a discharge of the jury – whether the forensic judgment of counsel was objectively rational – whether the appellant lost a chance of acquittal that was fairly open – where the appellant changed his instructions to counsel after the close of the Crown case

CRIMINAL LAW – procedure – restraining orders sought - ex-parte - orders made

CRIME – procedure – restraining orders sought – ex parte – orders made

CIVIL PROCEDURE – approval of settlement – by consent – whether the Court is satisfied that the settlement is beneficial to the person under legal incapacity – settlement approved

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether application validly served — Application sent by email to defendant’s solicitor on last day — Email address not provided on statutory demand as a means of service — Email did not come to the attention of solicitor until outside 21 day period — Service invalid — No jurisdiction — Application dismissed.

SUCCESSION – Statutory Wills – Unsuccessful application for statutory will – Costs - Principles COSTS – Protective jurisdiction – Statutory will application – Principles CIVIL PROCEDURE – Protective jurisdiction – Administration of estates – Application for statutory will – Costs - Principles

CRIMINAL LAW – Sentence – Manslaughter – trial for murder – offer to please – Aboriginal offender suffering violent and drug early environment and latter social exclusion – sentence imposed

CRIME – ADMISSION – s 90 of Act – person of Aboriginal descent – refusal to answer couched in non-confrontational terms – ERISP rejected

CRIME – Evidence - application of s 137 to ERISP to exclude video, but not sound - evidence admitted

CRIME – witness suffered head injuries which he says affect his memory of statements earlier made – witness is a prisoner – effect and relationship between ss13, 38, 65, 66, 192, 43 and 137 of Evidence Act – earlier statements not admitted – leave for the Crown to cross-examine refused

CORPORATIONS — Winding up — Voidable transactions — Insolvent transactions — Unfair preferences — Where loan to related entity — Loan repaid during relation-back period — Identification of true lender where conflicting evidence — Whether lender “creditor” of the company — Whether company insolvent at time of preference — Other elements of action admitted — Transaction avoided.

CIVIL PROCEDURE – application to stay a writ of possession – moneys owing under mortgage agreement - insufficient evidence of loan agreement to satisfy debt – application denied.

CORPORATIONS – statutory derivative action – application by plaintiff to bring proceedings on behalf of company – where plaintiff provides undertakings as to the company’s costs of conducting the proceedings – where defendant accepts that the proposed claim generally is seriously arguable – whether it is in the company’s best interests that the plaintiff be granted leave – whether the proposed proceedings involve a serious question to be tried – whether leave should be granted to plaintiff to commence proceedings.

ADMINISTRATIVE LAW – judicial review – assessment of damages under Motor Accidents Compensation Act 1999 (NSW) – whether assessor failed to respond to substantial clearly articulated argument put by insurer – requirement to establish alleged failure amounted to constructive failure to exercise jurisdiction – whether assessor failed to comply with s 126 of the Act – adequacy of reasons

LIQUOR LAW – Licensing – Removals – Statutory construction – Whether s 59 of the Liquor Act 2007 (NSW) authorised the Independent Liquor and Gaming Authority to grant a removal application that converted a hotel licence to a packaged liquor licence LIQUOR LAW – Licensing – Removals – Statutory construction - Whether s 53 of the Liquor Act 2007 (NSW) authorised the Authority to impose conditions on a hotel licence on a removal application so that it operates as if it were a packaged liquor licence – Whether a business operating under such a licence is compatible with the hotel primary purpose test in s 15(1) of the Liquor Act 2007 (NSW)

POLICE – powers and duties – power to prevent persons entering onto closed road – power to arrest – authorisation to use reasonable force – obligation upon police officers to provide identification and information – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 186, 201 and 230 considered ROADS – power to close road – power to prevent persons entering onto closed road – whether all exercises of power required identification and information to be provided by police officers TORTS – intentional torts – assault, battery and false imprisonment – whether steps taken to prevent persons entering closed road amounted to directions to which Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 201 applied – whether factual findings of primary judge that plaintiff was resisting police inconsistent with incontrovertible evidence or glaringly improbable – limitations on photographic evidence – malicious prosecution – whether plaintiff established absence of reasonable and proper cause

CRIMINAL LAW – procedure – restraining orders sought – ex parte – orders made

CRIMINAL LAW – procedure – orders sought for the examination on oath – ex-parte - orders made

CRIME – procedure – restraining orders sought – ex parte – orders made

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious violence offence – single serious violence offence – application for extended supervision order – whether the defendant is a supervised offender – whether the defendant poses an unacceptable risk of committing another serious offence – consideration of factors in s 9 – extended supervision order made for 3 years – conditions imposed – orders

CRIME – special hearing conducted before judge alone – counts of murder and robbery armed with an offensive weapon – circumstantial case – verdicts available that, on the limited evidence, offences charged committed CRIME – murder – partial defence of substantial impairment under s 23A of the Crimes Act 1990 (NSW) – where accused suffered from schizoaffective disorder at the time of offending – whether accused suffering from abnormality of mind arising from an underlying condition – whether accused’s capacity to understand events, judge whether actions right or wrong or control self was impaired – whether impairment substantial – verdict available that, on the limited evidence, alternative offence of manslaughter committed

EQUITY – injunctions – interlocutory injunctions – prima facie case – claim of undue influence and oppressive conduct under Corporations Act 2001 (Cth) s 232 – where company advanced funds to its shareholders to fund legal proceedings – propriety of use of company resources to fund proceedings EQUITY – injunctions – interlocutory injunctions – balance of convenience – whether restraint on company from advancing funds to shareholders would stultify the shareholders' conduct of legal proceedings – relief granted on limited terms

CONTRACTS – construction – partly written and partly oral contracts – plaintiff entered into a head contract with the Commonwealth for the provision of security services at various Commonwealth sites – plaintiff entered into subcontract with the defendant to supply additional security guards for the purpose of carrying out the head contract – where defendant made an oral commitment to provide other security work to the plaintiff on certain terms – scope and nature of commitment. EQUITY – equitable set-off – whether defendant’s claim against the plaintiff for an amount owing for unpaid invoices is impeached by the plaintiff’s claim against the defendant for an alleged failure to supply work hours.

COSTS –––– Party/Party –– Bases of quantification — Indemnity basis –– making of fraud allegations –– where second respondent unnecessarily joined as party to the proceedings –– where applicant’s conduct has led to unnecessary costs being incurred

CIVIL PROCEDURE – Court of Appeal – leave to appeal – primary judge’s reasons not attended with sufficient doubt – no question of contested principle raised – leave refused

SUCCESSION – Succession Act 2006 (NSW), s 59 – family provision claim – where deceased’s will left entire estate to respondent – where deceased and respondent separated shortly before deceased’s death – where deceased proposed to make a new will in light of separation – where before deceased’s death, deceased and respondent contracted to sell jointly held property and divide proceeds equally – whether deceased and respondent effected final financial settlement following separation – whether deceased’s share of sale proceeds, settlement occurring after death, should be designated as notional estate – whether adequate provision made for proper maintenance and advancement in life of two adult children

APPEAL – contract – where parties entered into various contractual arrangements to undertake excavation works including harvesting natural sandstone – whether the primary judge erred in finding the parties formed a concluded agreement to vary the terms of the head contract and the sub-contract – where credit findings are challenged – importance of establishing a Fox v Percy type error APPEAL – contract – whether the primary judge erred in finding the cross-appellant’s show cause notice and termination of the head contract were invalid – effect of variation of the head contract – whether the primary judge erred in finding a breach of an implied term of good faith and reasonableness APPEAL – contract – where parties entitled to share in royalties from sale of sandstone – whether the primary judge’s construction of the term capping the contractor’s share of the royalties was wrong