Cases and authorities

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Multiple sexual offences against young daughter – Whether sentencing judge erred in assessment of objective seriousness — Whether consideration of aggravating factors resulted in double counting CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — Whether loss of children as a result of offending is a form of extra-curial punishment CRIME — Appeals — Appeal against sentence — Manifest excess CRIME — Appeals — Appeal against sentence – Whether sentencing judge increased the aggregate sentence without reasons – Sentence perfected when entered on the indictment signed by the judge — District Court Rules 1973 (NSW), r 53.12 — Sentence not increased CRIME — Appeals — Appeal against sentence — misapplication of principle – Parity – No error

CRIMINAL LAW – appeal against sentence – where appellant sentenced for assault inflicting grievous bodily harm with intent to rob armed with an offensive weapon, robbery armed with a dangerous weapon, and assault with intent to rob armed with a dangerous weapon – where appellant sentenced to aggregate sentence of 11 years with a non-parole period of 7 years and 9 months – whether the sentencing judge erred in the application of the totality principle – whether the new sentence imposed on the appellant’s co-offender requires the re-exercise of the principle of proportionality as against the appellant’s sentence – whether the aggregate sentence is manifestly excessive – appeal dismissed

CRIMINAL LAW – Offences – Sentence – Appeal – Importing a quantity of cocaine in excess of the marketable quantity – Where sentencing judge failed to take into account the utilitarian value of the applicant’s plea of guilty – Error established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant re-sentenced in the fresh exercise of the sentencing discretion –– Where applicant entitled to a discount of 25% to reflect the utilitarian value of the early plea of guilty – Serious offending – Where applicant was responsible for the physical importation of a quantity of cocaine substantially in excess of the marketable quantity – Applicant remorseful with good prospects of rehabilitation – Where sentence of 6 years imprisonment with a non-parole period of 4 years imprisonment was imposed by the sentencing judge – No lesser sentence warranted in the fresh exercise of the sentencing discretion

CRIMINAL LAW – Offences – Appeal – Sentence –Where applicant pleaded guilty to importing a quantity of cocaine in excess of the commercial quantity – Where there was a disparity in the sentence imposed upon the applicant compared with the sentence imposed upon a co-offender – Whether the applicant had a justifiable sense of grievance – Where there were clear distinguishing features between the objective criminality and the subjective circumstances of the applicant and that of the co-offender – No unjustified disparity in the sentences imposed CRIMINAL LAW – Offences – Appeal – Sentence –Whether sentence imposed upon the applicant was manifestly excessive –– Serious offending involving the importation of a quantity of cocaine which was substantially in excess of the commercial quantity – Applicant had travelled from Europe to the United States to collect the cocaine before travelling to Australia – Significance of role played by the applicant in effecting the importation – Sentence not manifestly excessive

CRIMINAL LAW – appeal against conviction – judge alone trial – murder – whether verdicts of guilty were unreasonable and inconsistent with the evidence – shooting murder – shooter known – whether applicants gave instructions for killing – circumstantial case – much of Crown evidence dependent on informer evidence – significant credit issues affecting informer evidence – careful analysis of evidence by trial judge – appeals dismissed.

CRIME – Appeals – Appeal against sentence – whether the sentencing judge erred by making findings as to objective seriousness which contravened concessions by the Crown – whether the Crown’s submissions in respect of objective seriousness are properly characterised as concessions – whether the sentencing judge erred in assessing objective seriousness – whether the sentencing judge imposed an aggregate sentence which was unreasonable or plainly unjust

CRIMINAL LAW – Crown appeal against sentence – three counts of sexual intercourse with a child, two counts of solicit to murder and firearm offences – whether error in assessment of objective seriousness of offences – whether sentence manifestly inadequate – need to take into account modest assistance to authorities – Crown appeal made out – whether residual discretion should be exercised – need to resentence – aggregate sentence increased.

SUCCESSION - judicial advice application - Trustee Act 1925 (NSW) s 63 - administration of trust property – Benjamin Order

CIVIL PROCEDURE – summary disposal – judgment for plaintiff – where defendant misappropriated funds belonging to the plaintiffs – where defendant undertook suspicious Google searches including “what to do if you think you will be caught for imbezlement [sic] in Australia” – where no appearance by defendant and no defence

ADMINISTRATIVE LAW — Judicial review — review of decision of Review Panel made under Motor Accidents Compensation Act 1999 — whether Panel erred in assessment of the accident circumstances — whether panel erred in reasoning process — whether Panel erred in approach to causation — Whether Panel erred in approach to pre-existing impairment

EVIDENCE — Privileges — Client legal privilege – whether Post-it notes attached to documents claiming privilege can also be privileged – whether privilege claim can be deferred or ought to be determined - where Post-it note was not originally made subject to a privilege claim – where document that Post-it note was attached to has not been identified.

CIVIL PROCEDURE — Pleadings and particulars — Striking out – Grossly deficient – Self-represented litigant – Opportunity given to apply for pro bono legal assistance

ADMINISTRATIVE LAW – declaratory relief – Motor Accidents Compensation Act 1999 – operation of ss 94 and 95 of the Act – contributory negligence – Certificates – incorporation of reasons in certificate – whether insurer wholly accepts liability – Assessment Conference – abandonment – bona fides not applicable – dismissed

CIVIL PROCEDURE – subpoenas – review of decision of the Deputy Registrar to refuse leave to issue subpoenas – application for leave to issue two further subpoenas – interlocutory injunction sought

CRIMINAL LAW – offences against the person – murder – trial by judge alone – special verdict – not guilty by reason of mental illness – schizophrenic disorder – distinction between legal and ‘moral’ wrongfulness – finding of not guilty by reason of mental illness

CIVIL PROCEDURE – jurisdiction – declaration that Court has no jurisdiction over defendant – whether first defendant domiciled in United States a necessary or proper party – whether proceedings doomed to fail against local defendants – Schedule 6, Uniform Civil Procedure Rules 2005 (NSW)

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Judgment debt subject of demand arose by filing of adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) — Amount of debt described in judgment not equal to amount claimed in demand at time of service — Judgment retrospectively amended to match amount claimed in demand — Whether error in demand “some other reason” to set aside — Whether setting aside ought to be conditional on debtor paying in to court the amount of debt

CIVIL PROCEDURE – informal application for adjournment – hearing previously vacated on the application of applicant -- no cogent reasons advanced in favour of adjournment

REAL PROPERTY – mortgages – where bank relies on liquidation of company to enforce possessory interest under mortgages – whether liquidation of company an event of default – whether repayment of bills matured loan account secured by mortgages – whether appointment of new trustee replaces the borrower in loan documents PRIMARY INDUSTRY – farm debt mediation – Farm Debt Mediation Act 1994 (NSW) – where proceedings for possession an enforcement action under the Act – where s 11 certificate issued following farm debt mediation and settlement – whether certificate void – whether the Act applied at time of enforcement action MISLEADING AND DECEPTIVE CONDUCT – where mortgagee informs mortgagor that mediation under Farm Debt Mediation Act 1994 (NSW) unavailable – whether misleading or deceptive conduct – whether mortgagor principally engaged in farming operations EQUITY – rectification – where trustee purportedly declares property as being held for the benefit of itself – where true meaning of documents can be ascertained as a matter of construction – whether declarations of trust should be rectified GUARANTEE AND INDEMNITY – where parties have agreed to maximum amount that the guarantor can be called to pay on demand – whether award of interest under Civil Procedure Act 2005 (NSW), s 100 contrary to agreed maximum

CIVIL PROCEDURE – leave to appeal – interlocutory orders – orders working out orders in principal judgment – whether parties should be left to exercise of liberty to apply – form of orders dependent on circumstances of case – effect of orders explained in reasons TRUSTS – trust documents – right of incoming trustee to delivery up of trust documents by outgoing trustee – documents held by third parties – nature of property in documents

LAND LAW – leases – rent – provision for review of rent – appointment of valuer to determine market rent for a sub-lease of premises located at King Street Wharf, Sydney – valuer required to have regard to certain market rents of “comparable premises in the vicinity of the Premises” – where valuer had regard to rents for premises not in the vicinity of the Premises – valuer’s determination not carried out in accordance with the terms of the sub-lease – declaration made that determination is not binding

CONTRACTS — Construction — Interpretation — Agreement to settle proceedings — Not for Court to review application of principles of Hindu religion

CRIMINAL LAW – bail – release application – show cause – lengthy delay – assessment of strength of prosecution case – tendency evidence – Marquis de Sade – browsing history not for the faint hearted – issues concerning consent – where tendency evidence capable of supporting defence case – misogyny – delayed complaint – where complainants consented to some “rough” sex – text message suggesting accused respected “safe word” – interaction between assessment of risk and show cause – finely balanced – likely trial date – inquiries with District Court indicate trial dates available in September

COSTS – indemnity costs – Uniform Civil Procedure Rules 2005, r 20.26 – offer of compromise and alternative Calderbank offer issued before trial – whether or not it was unreasonable for the plaintiff to have not accepted the offer of compromise and Calderbank offer at the time – whether an offer of compromise and Calderbank offer was a basis for awarding indemnity costs in the third defendant’s favour

COSTS –– application by the plaintiff for review of assessment notices issued by the defendant –– proceedings run by both parties on issues that ultimately did not arise for determination –– consent orders agreed and notices revoked –– no order as to costs –– parties each to bear own costs –– misapprehension by both parties as to the issues for determination

LAND LAW – conveyancing - two contracts for sale – off-the-plan purchase – alleged representations by the plaintiff vendor’s agent as to the size of the properties – defendant purchaser paid part of the deposits upon exchange and the balance was due upon expiration of the cooling off period – where the balance was not paid by that date and thereafter – purchaser repudiated the contracts – vendor seeks payment of the balance of the deposits – whether the vendor is entitled to recover the deposit – judgment for the vendor LAND LAW - conveyancing – deposit - discretionary power to order relief against forfeiture of a deposit under s 55(2A) Conveyancing Act 1919 (NSW) – whether power can be exercised in favour of the purchaser where the vendor is suing to recover deposit and purchaser does not cross-claim – power extends to such a situation to avoid circuity of action – factors relevant to the exercise of the discretion – where the purchaser was an experienced buyer with a significant property portfolio – in the absence of a finding as to a misrepresentation or some other unconscionable conduct no basis for the exercise of discretion CONSUMER LAW – misleading or deceptive conduct – whether the vendor breached ss 18 and/or 30 of the Australian Consumer Law – whether the vendor made a representation as to the size of the properties – vendor denied making such a representation – assessment of the relative credibility of representor and representee – fallibility of human memory – reliance upon contemporaneous documents to resolve dispute – where the contemporaneous documents pointed strongly to the representation not being made – where, in any event, the purchaser was on notice within the cooling off period that no such representation was being made – claim unsuccessful CONSUMER LAW – unconscionability – where the purchaser alleged that the vendor was aware of new plans affecting the size of the properties – where such knowledge was purported to have been acquired during the cooling off period - whether the vendor indeed had such knowledge – paucity of evidence in support – purchaser under no special disadvantage – claim unsuccessful CONSUMER LAW – harassment and coercion under s 50 Australian Consumer Law – unsuccessful settlement conference after the commencement of proceedings – purchaser given three options including continuing with court proceedings – whether this amounted to coercion – meaning of coercion – no negation of choice or freedom to act – claim entirely misconceived.

APPEAL – leave to appeal – whether primary judge erred in finding jurisdiction – where statute retrospectively conferred jurisdiction in any event – whether sufficient case shown for grant of leave – leave refused

CRIME – judicial review – prosecutions brought without requisite consent of Attorney General – effect of failure to obtain consent – jurisdictional error – convictions and sentences set aside

CONTRACT – construction – conflict between contractual powers – conditional contract for sale of land – vendor had right to rescind if conditions precedent not satisfied – contract amended so as to confer right upon purchaser to “step-in” to attempt to achieve satisfaction of conditions precedent – whether vendor’s contractual right qualified by purchaser’s right CONTRACT – frustration – conditional contract for sale of land – land contaminated – whether amendment to State Environmental Planning Policy preventing subdivision until remediation conditions satisfied amounted to frustration

NEGLIGENCE – professional negligence – legal practitioners – duty of care where solicitor represented husband in family law proceedings – where solicitor retained by husband to act on sale of jointly held property – whether there was a solicitor-client relationship between the solicitors and the wife, and therefore whether they owed her a duty of care AGENCY – authority – ostensible authority – whether husband had wife’s actual or ostensible authority to direct payment of proceeds of sale TORT – negligence – concurrent liability – whether the husband was a concurrent wrongdoer, such as to reduce the solicitors’ liability

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — proceedings brought out of time

CRIMINAL LAW - sentencing hearing - Offender pleaded guilty to four charges - committing acts in preparation for or planning of terrorist acts (s.101.6(1)) Criminal Code (Cth)) - intentionally delivering letter threatening to kill (s.31 Crimes Act 1900) - wound with intent to murder (s.27 Crimes Act 1900) - cause grievous bodily harm with intent to cause grievous bodily harm (s.33(1)(b) Crimes Act 1900) - application for non-publication orders concerning certain evidence to be tendered at sentencing hearing - public interest in restricting further publication of or broadcasting of terrorist material by extremist groups - non-publication orders made

CIVIL PROCEDURE –– Court administration — Non-party access to court files –– probate and administration of estate proceedings –– application for access to probate file including alleged affidavit(s) made in support –– allegations of fraud –– unnecessary joinder of second respondent by applicant –– orders regarding access deferred and applicant directed to make submissions regarding costs

PRACTICE AND PROCEDURE - Pleadings - Summary dismissal - Statement of claim – Whether the plaintiff failed to prosecute the proceedings with due despatch – Whether no reasonable cause of action disclosed TORT - Negligence - Negligent advice - Failure to warn – Obvious risk – Whether risk of loss was obvious TORT - Negligence —- Negligent advice - Failure to warn – Causation – Whether the advice caused the plaintiff’s loss

APPEAL – leave to appeal – whether additional imputations carried and defamatory – whether one imputation relevant to occasion of privilege – whether defendant actuated by malice in publishing the matters complained of – where no issue of principle – challenge to factual findings – whether sufficient case shown for leave – leave refused

PRACTICE – appeals – stay of execution – order for payment to respondents out of moneys in court – whether applicants had made out proper basis for a stay – where respondents held assets including real property and proffered undertakings – stay refused

PRACTICE – application to vacate – no prejudice to appellant – delay by appellant in filing and prosecution of appeal – appellant has benefit of stay of execution – grounds of appeal limited to questions of law – hearing date vacated – appropriateness of appointment of counsel to appear as amicus curiae

ADMINISTRATIVE LAW – Procedural fairness – apprehended bias – objective test – reasonable grounds for apprehension of deviation from the proper course of justice – factual foundation – deviation from lawful decision making – grounds not satisfied in this case

CIVIL LAW – inference from failure to call evidence –requirement that material be sufficiently contemporaneous – absence of evidence of any association – tender rejected

COSTS — Application for indemnity costs — consent to summary dismissal — plaintiff surrendered and acted unreasonably — indemnity costs awarded for a period

CONTRACTS – formation – acceptance of offer – knowledge of offer – terms contained in attachment to email – whether terms brought to attention of offeree – whether a legally binding agreement giving rise to an obligation to make payments alleged to be owing under the agreement – acceptance cannot occur if offeree is ignorant of the offer

HIGH RISK OFFENDER – Section 13 Application for variation of existing ESO for violent offending – anti-social personality disorder – query unacceptable risk of committing serious sex offence – general sexual preoccupation – conditions appropriate to risk of sex offending

CIVIL PROCEDURE – separate determination of questions – r 28.2 UCPR – claim in professional negligence and for statutory breaches – limitation defence raised – whether cause of action arose on particular date, or much later in time – no agreement as to facts – no agreement as to principles to be applied to determining limitation defence – whether loss was contingent - dispute as to length and costs of any hearing of separate questions

CRIMINAL PROCEDURE – application to sever counts – joinder of counts not justified unless evidence cross-admissible – administrative factors – direction capable of averting prejudicial effect – leave granted to Crown to present indictment charging two murders– application for separate trial dismissed – no risk of positive injustice EVIDENCE — Coincidence evidence – criminal proceedings – significant probative value – s 98 –further restrictions on coincidence evidence – s 101 – cross-admissibility – “particular act sought to be proved” – “two or more events” – whether probative value “significantly outweighs” prejudicial value – direction capable of averting prejudicial effect CRIME — Complicity — Joint criminal enterprise – proof of participation – present at commission of offence

CORPORATIONS — Winding up — Commencement of Court-ordered winding up — Where company previously in administration — Application of Corporations Act 2001 (Cth) s 468(1) — Whether transaction made on section 513C day void — Transaction on section 513C day not void. CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Contested point of law — Narrow factual compass not in dispute — Whether appropriate to determine point of law on summary application — Determination made — Pleadings struck out. WORDS AND PHRASES — “Commencement of the winding up by the Court” — “section 513C day” —“disposition of property of the company … void”.

EQUITY – adoption – whether adoption proposed will promote the best interests of the child – whether dispensing with birth parent consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action FAMILY LAW AND CHILDREN – adoption – whether child of Aboriginal descent – Aboriginal child placement principles – whether Aboriginal child placement principles applied or mandatory

COSTS – Party/Party – Exception to general rule that costs follow the event – apportionment – whether issues on which successful party was unsuccessful were clearly dominant or separable COSTS – Party/Party – Bases of quantification – Indemnity basis

CRIMINAL LAW – application for leave to appeal against sentence – unrepresented accused – serious drug offence, and other offending – whether sentence manifestly excessive – whether error in assessment of objective seriousness – whether misapplication of principle with regard to criminal record of applicant – whether absence of pleas of guilty in the Local Court due to incompetent representation of applicant – proposed grounds devoid of merit – leave to appeal refused

CORPORATIONS – application to set aside a creditor’s statutory demand – whether there is a genuine dispute as to the amount or existence of the debt claimed – whether the creditor’s statutory demand should be set aside under s 459H(1)(a) of the Corporations Act 2001 (Cth).

Administrative Law – Judicial Review – Where first defendant sought damages for injuries sustained in a motor vehicle accident – Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable for assessment in that way due to the plaintiff’s false and misleading statements – Whether there was error of law or jurisdictional error on the part of the Assessor – Whether the Assessor asked the correct question – Whether the Assessor’s reasons were adequate – Errors established – Matter remitted for determination according to law Practice and procedure – Costs – Where first defendant filed an appearance submitting to all orders of the Court – Where plaintiff succeeded in obtaining the relief sought – No reason for the plaintiff not to be awarded costs in its favour Words and phrases – “suitable”