Cases and authorities

DE FACTO RELATIONSHIP – next of kin – whether subsisting de facto relationship – burial rights – deceased intestate

FAMILY LAW - Children – Parens patriae jurisdiction – Orders authorising Secretary to permit medical treatment of child under the parental responsibility of the Minister

ADMINISTRATIVE LAW - judicial review - grounds of review - whether the Panel failed to give reasons -whether the Panel failed to consider issues afresh

SUCCESSION – PRACTICE & PROCEDURE – Claim for family provision order by former spouse of the deceased – Probate granted to Defendant, who was one of the named executors, one of three children of the deceased, and a beneficiary equally, with her two siblings, entitled to share the whole of the deceased’s estate – No provision made for Plaintiff – Application for summary dismissal by Defendant – UCPR rule 13.4 – Submitted that the Plaintiff is unable to establish factors warranting the making of her application – Whether the proceedings are frivolous or vexatious – Documents tendered at the hearing resulted in Defendant applicant conceding that notice of motion must fail – Argument on costs – Court administration – Case management

COSTS – party/party – general rule that costs follow the event – proceedings discontinued or dismissed –defendant company deregistered – defendant’s insurer paid costs of defending proceedings – defendant’s insurer continued to incur costs not knowing of deregistration – insurer joined as defendant – plaintiff discontinued against insurer on sixth day of hearing – whether insurer should have costs incurred prior to its joinder as defendant

CORPORATIONS — Winding up — Liquidators — Remuneration — Application for approval of liquidator’s remuneration — Short period of liquidation before winding up terminated — Whether remuneration reasonable — Whether solicitors’ fees may be approved as liquidator’s disbursements — Determination made.

BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for recovery of “claimed amount” as a debt due – validity of payment claim – available reference date – whether termination gives rise to statutory entitlement to payment – validity of supporting statement – supporting statement substantially compliant with required form – application to recover part of amount claimed – judicial evaluation of “claimed amount” neither sought nor appropriate.

HIGH RISK OFFENDER – Preliminary application – Where plaintiff sought an Interim Detention Order for a period of 28 days – Defendant’s history of violent offending – History of non-compliance with conditions of parole – Evidence of possible schizophrenic condition – Where such condition not formally diagnosed and thus untreated – Interim Detention Order made

TORTS – negligence – motor vehicle accident –whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible COURTS – whether fact finding process of primary judge miscarried – segmentation of decision-making process impermissible

CORPORATIONS – application for approval for liquidators to enter into deed of indemnity and compromise a debt nunc pro tunc under ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth) – where deed of indemnity provides certain priorities to a creditor – where deed of indemnity involves the compromise of debt – where creditors’ interests are promoted by entry into deed of indemnity – whether entry into deed of indemnity should be approved nunc pro tunc.

FAMILY LAW — Children — Adoption – Adoption order –requirement for report pursuant to Adoption Act 2000 (NSW), s 91.

LAND LAW – Conveyancing Act 1919 (NSW), s 66G – orders consequent on appointment of trustees for sale – costs and disbursements. LAND LAW – co-ownership – incidents – accounting between co-owners – orders for adjustment and apportionment of proceeds consequent on sale of property.

EVIDENCE – witness evidence – re-examination – scope of re-examination – whether cross-examination of expert witness meant that tender of previously disallowed evidence could be tendered – tender allowed

COSTS – security for costs – relevant factors – impecuniosity – delay – risk of stultification – plaintiff’s impecuniosity attributable to the defendant’s conduct COSTS – security for costs – plaintiff strata corporation – liability of members

CIVIL PROCEDURE — Application pursuant to r 13.4 UCPR for summary dismissal of cross-claim as against second cross-claimant –– application dismissed with costs –– pleadings taken at their highest –– not established that cause of action against second cross-defendant is untenable or doomed to failure COSTS — Application for indemnity costs —Calderbank offers –– whether genuine offer of compromise and whether unreasonable for second cross-defendant not to accept the offer –– costs of the summary dismissal application ordered on an indemnity basis

CIVIL PROCEDURE — Originating process — Expiry before service — Extension of time for service of statement of claim granted — statement of claim not served within extended time — successive extensions — statement of claim still not served — deliberate delay by the plaintiff in effecting service of the originating process in order to conduct the proceedings as he chose — leave for further extension refused

JUDGMENTS AND ORDERS – Court of Appeal – Judges of Appeal – Appointment, tenure and remuneration – Whether Court of Appeal invalidly constituted so as to invalidate orders – Whether s 72 Commonwealth Constitution governs the maximum permissible age of judges of State Supreme Courts

CRIMINAL LAW – conviction appeal – trial involving three defendants charged with five counts of aggravated sexual assault and two counts of aggravated indecent assault – verdicts of acquittal entered in all the sexual assault matters – applicant convicted of the two aggravated indecent assault counts – whether written and oral directions given by trial judge correctly stated the mental element required for the aggravated indecent assault counts – whether evidence available to establish the “in company” element of the aggravated indecent assault counts – whether verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – error in judge’s directions established – applicant entitled to a retrial of the aggravated indecent assault counts – whether verdicts of acquittal should be entered in respect of the aggravated indecent assault counts.

CRIME – appeal against sentence – whether the judge failed to assess the objective seriousness of s 166 offences – whether the judge erred by setting excessive starting points for each offence – whether the judge failed to indicate how the Form 1 was taken into account – whether sentence imposed was manifestly excessive in all the circumstances

CRIMINAL PROCEDURE – suppression and non-publication orders – variation – whether Bar Council had standing to bring an application for review – whether denial of procedural fairness

CRIMINAL LAW – trial by judge alone – single count of murder – elements of offence admitted by accused – reliance upon defence of mental illness – ancillary reliance upon partial defence of substantial impairment – discussion of elements of defence of mental illness – consideration of whether proven on balance that, at time of fatal act, accused did not appreciate its wrongfulness – discussion of elements of partial defence of substantial impairment – consideration of whether proven on balance that impairment suffered by accused was so substantial as to warrant reduction in liability from murder to manslaughter – verdict of guilty of murder returned

LIMITATION OF ACTIONS – TORT – MOTOR ACCIDENT – “full and satisfactory explanation” – explanation not satisfactory from after July 2013 – summons dismissed.

CRIMINAL PROCEDURE – where accused charged with murder – where counsel for accused requested a direction to the jury on the issue of extreme provocation – whether there is evidence that the act that caused the deceased’s death was in response to extreme provocation – whether there is evidence that the accused lost self-control when he killed the deceased – application rejected

LAND LAW – possessory title – claim made over area of land between two residential lots – qualified title – claimed land subject to right of way benefitting plaintiff’s adjoining property – where the plaintiff and his tenants used parts of the claimed land for parking, storage and a garden – where the plaintiff undertook paving works on parts of claimed land – whether acts exceed those authorised by right of way – whether acts sufficient acts of possession showing an intention to exclude all others – where acts not done on a pathway area – possessory title established over part of the claimed land

CIVIL PROCEDURE – recusal application – whether reasonable apprehension of bias – exchange with counsel in the course of argument – nature of costs order – further listing of interlocutory application

EQUITY — Fiduciary duties — Breach — Rule in Barnes v Addy — Whether claim for knowing assistance in fraudulent and dishonest design adequately pleaded

PRACTICE AND PROCEDURE – application to transfer defamation matter from District Court to Supreme Court – application of Public Interest Disclosure Act 2013 (Cth) – operation of Act not previously considered by the Court – application of Act gives rise to complex issues of law – transfer of proceedings should take place.

LAND LAW — Conveyancing — Contract for sale — Deposit — Application for relief from forfeiture of deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A) — Whether unjust or inequitable — Factors relevant to exercise of the Court’s discretion — improvements to land between exchange and termination – lengthy pre-contractual negotiations between parties — Significant funds expended to obtain finance — Vendor’s right to terminate exercised after several extensions — Purchaser conferred benefit and detriment on Vendor by works undertaken on land — Purchaser caused modest increase in value of land — Order for return of deposit.

APPEAL – Civil – Extension of time – When appeal filed one day out of time APPEAL — Civil — Leave to appeal – Whether the Magistrate failed to consider evidence – Where no House v The King error identified – Where the cost of the appeal exceeds the amount of the claim

EQUITY – trusts and trustees – resulting trusts – presumption of advancement – whether son held property on trust for mother – where son received benefit of first home owner’s grant and stamp duty concession

CIVIL PROCEDURE – no question of principle

CRIMINAL LAW – appeal against sentence – where appellant sentenced for manufacturing commercial quantity of prohibited drug, supplying commercial quantity of prohibited drug, and knowingly dealing with proceeds of crime – where appellant sentenced to aggregate sentence of 14 years imprisonment with a non-parole period of 10 years – whether in determining the aggregate sentence the sentencing judge erred in the application of the totality principle – whether the sentence imposed upon the applicant resulted in double punishment – whether sentence manifestly excessive – appeal dismissed

CRIME - Appeals - Crown appeal against sentence - aggravated sexual intercourse with a child without consent - effect of the complainant’s consequent pregnancy - pregnancy was a circumstance of aggravation - whether the sentencing judge erred in assessing the objective seriousness of the offending - whether the sentence was manifestly inadequate

CRIME – appeal against conviction – murder – admissions by appellant – whether verdict unreasonable – whether reasonable hypothesis consistent with innocence of murder available on the evidence – whether miscarriage of justice by failure by trial judge to direct the jury that if the admitted blows were the traumatic cause of death, appellant was to be acquitted of murder – Rule 4 – whether appellant had lost real chance of acquittal

CRIMINAL LAW – appeal against conviction – trial for sexual assaults of adult complainant – whether complainant answered question in cross-examination about other sexual contact with applicant non-responsively – whether defence counsel subsequently addressed jury inappropriately – whether trial judge misdirected jury about final address of defence counsel – appeal against conviction dismissed CRIMINAL LAW – appeal against sentence – aggregate sentence – whether trial judge adopted inappropriate implicit cumulation between indicative sentences – whether trial judge failed to consider question of implicit concurrence adequately – appeal against sentence dismissed

CRIMINAL PROCEDURE – Notice of motion to stay trial until legal representation is arranged – successful application for, and grant of, legal aid – counsel briefed - notice of motion dismissed for reason that representation has been arranged

CONTRACTS – particular parties – principal and agent – undisclosed principal – building contract – where licensed supervisor contracted as agent for builder – identity of contracting parties – agent personally liable in circumstances where reasonable person in position of the parties would conclude agent was contracting party

PRACTICE AND PROCEDURE – defamation – transfer of proceedings to District Court – proper approach – relevant factors.

WORDS AND PHRASES – “contested matter”; STATUTORY CONSTRUCTION – Legal Profession Uniform Law Application Regulation 2015 – clause 24 – where regulation fixes costs payable for obtaining judgment in matters which are not contested matters – meaning of term “contested matter”; PRACTICE AND PROCEDURE – application for default judgment in proceedings commenced by summons; HELD: Judgment for the plaintiff for $A9,980,425 plus costs, which are not fixed under the Legal Profession Uniform Law Application Regulation 2015 (NSW)

HIGH RISK OFFENDER – application for further extended supervision order – dependence on deviant pornography – persistent rape fantasies – diagnoses of various psychotic disorders – unacceptable risk to the community

CIVIL PROCEDURE – whether threshold requirements in the Civil Procedure Act 2005 for constitution of a representative proceeding have been complied with - whether the group members are precisely defined and identified – whether the group members advance sufficient common questions of law or fact – whether there is a reasonable cause of action as against all sixteen defendants – held there was substantial common questions to be determined – not an embarrassing pleading

EVIDENCE – admissibility of expert evidence regarding handwriting comparison – whether the expert relied upon a flawed methodology in arriving at conclusions – whether the expert weighed up both similarities and dissimilarities in the handwriting - whether the expert had a duty to disclose the documents which had been relied upon - whether the evidence was unfairly prejudicial to the accused – whether the expert has failed to comply with a subparagraph of the Expert Code of Conduct – expert opinion is relevant, has probative value and is admissible

CONTRACT – construction – uncertainty – matter left for determination of one party – interest rate – times and periods – requirement of reasonableness – no uncertainty

SUCCESSION ACT – family provision order – 61 year old adult son – solicitor – born of brief first marriage – no provision made – widow and three half-siblings from testator’s second marriage – no basis for disturbing will

Criminal law – Offences – Sentence – Using a carriage service to solicit child pornography material – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity – Making an unwarranted demand with menaces – Where applicant sent messages to the victim to procure sexual activity – Where applicant sought money from the victim in exchange for destroying photographs she had sent to him – Where the findings of the sentencing judge largely favourable to the applicant – Applicant barely 18 years of age at the time of the offending – Victim 15 years of age – Not a case of grooming – Serious mental health issues prevailing at the time of the offending – Sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years manifestly excessive in the circumstances – Applicant re-sentenced

CRIME — bail — appeal bail — “special or exceptional circumstances” — s 22 Bail Act 2013 (NSW) — where application for release relies exclusively on strength of appeal — whether appeal is “most likely to succeed” — El-Hilli & Melville v R [2015] NSWCCA 146 — application refused

CRIMINAL LAW – appeal against conviction – evidence – identi fication and recognition evidence – whether convictions unreasonable or not supported by evidence – whether it was open to the jury to find beyond reasonable doubt that the appellant was guilty of discharging a firearm in a public place and causing grievous bodily harm to the victim CRIMINAL LAW – appeal against conviction – where appeal does not involve a question of law alone – where appellant failed to seek leave to appeal – grant of leave not a formality

CRIMINAL LAW – appeal against sentence – applicant pleaded guilty to two offences of supply a large commercial quantity of a prohibited drug – two additional offences taken into account on a Form 1 – applicant a middle man in drug supply chain – applicant supplied methylamphetamine and MDMA to various persons including undercover police agent – applicant had a long criminal history involving drug and dishonesty offences and was on parole when he committed the present offences – whether the sentencing judge correctly assessed the objective seriousness of both offences – assessment not confined to purity or quantity of drugs supplied – whether the applicant was denied procedural fairness – where the applicant submitted that the sentencing judge made erroneous findings in relation to the applicant’s motivation for the offences and prospects of rehabilitation – inconsistent evidence in reports tendered by applicant as to motivation for committing offences – applicant not denied an opportunity to clarify inconsistencies - whether the sentence was manifestly excessive – no finding of manifest excess – whether the applicant had a justifiable sense of grievance given disparity between his sentence and that imposed upon co-offender – co-offender sentenced by another judge after applicant sentenced - where the co-offender’s sentence was not unduly lenient – significant disparity in sentence giving rise to justifiable sense of grievance – appeal allowed and applicant resentenced

CRIMINAL PROCEDURE – application for separate trial – applicable test – alleged prejudice arising from possibility that jury will view circumstantial evidence through lens of one accused’s comprehensive admissions in recorded interviews – prejudice can be overcome by orthodox directions – application refused

EVIDENCE – admissibility of recorded interviews – whether promise made or inducement given by police – whether instrument extending investigation period valid – whether detention was unreasonable and therefore unlawful