Cases and authorities

REAL PROPERTY – Section 88K Conveyancing Act, 1919 REAL PROPERTY – Section 88K(3) – terms of easement – remedial work REAL PROPERTY – Section 88K(4) – compensation – market value – injurious affectation – blot on title COSTS – Section 88K(5) – unreasonable conduct by defendant – order ‘to the contrary’ – relevance of special nature of proceedings for order pursuant to Section 88K(1)

ADMINISTRATIVE LAW – procedural fairness – where solicitor applied for funding in respect of client’s workers compensation claim for hearing aids –where allegation that solicitor failed to disclose client’s previous claim – where Commissioner sought disciplinary action against solicitor – where Tribunal found solicitor guilty of professional misconduct and removed his name from the Roll of lawyers – Legal Profession Act 2004 (NSW), s 562(2)(a) – whether Tribunal denied solicitor procedural fairness by determining allegation not pleaded by Commissioner – whether Tribunal’s finding that solicitor altered date of client statement influenced its findings in respect of other matters – whether solicitor deprived of opportunity of a successful outcome – whether the matter should be remitted for re-hearing

CONSUMER LAW – misleading or deceptive conduct – where respondent distributed to Woolworths on trial basis health food supplements manufactured by appellant in South Africa under brand name “The Real Thing” – respondent later supplied Woolworths with locally sourced products with labels including the initials “TRT” and later the words “The Real Thing” – whether respondent misleadingly or deceptively represented to Woolworths that its goods were manufactured by or under the authority of the appellant – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 – whether primary judge misread the pleading of the appellant’s reputation in Australia – whether error in finding appellant must prove Woolworths knew of the appellant and the products supplied during the trials were those of the appellant – whether error in finding appellant had not established that Woolworths relied on labelling of the respondent’s products TORTS – passing off – whether respondent passed off its products as those of the appellant – whether primary judge erred in finding that the appellant had not established that it had a reputation in Australia with Woolworths

DAMAGES – exemplary damages – injury caused by defendant biting officer’s leg while being restrained – relevance of defendant’s drug use and psychosis – whether defendant committed conscious wrongdoing in contumelious disregard of plaintiff’s rights – whether exemplary damages should have been awarded – Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 applied DAMAGES – future economic loss – circumstances in which buffer appropriate DAMAGES – whether assessment governed by Civil Liability Act 2002 (NSW) – intentional act done with intent to cause injury – Civil Liability Act, s 3B(1)(a) – whether defendant’s act intentional where directed by conscious mind – whether defendant not understanding nature and quality of action can intend to cause injury EVIDENCE – principle in Jones v Dunkel – defendant not called – claim that sedatives and psychosis “obliterated” memory of incident – inference that defendant’s evidence would not have assisted his case TORTS – defences – whether mental illness may constitute defence to trespass to person – Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234, applied TORTS – trespass to the person – battery – mental element – act to be “intentional” – act to be “voluntary” – whether elements of battery satisfied where act directed by defendant’s conscious mind – effect of mental illness – whether relevant that defendant’s psychosis caused by illicit drugs WORDS AND PHRASES – “intentional act” – “intent to cause injury” – Civil Liability Act s 3B(1)(a) – “utterly without fault” – Weaver v Ward (1616) Hob 134; 80 ER 284

PRACTICE AND PROCEDURE – vexatious proceedings orders – whether procedures required by the Vexatious Proceedings Act 2008 (NSW) were followed – need to identify which proceedings were in fact vexatious PRACTICE AND PROCEDURE – vexatious proceedings – whether proceedings are vexatious – meaning of “vexatious” – whether proceedings were conducted frequently – meaning of “frequently” APPEALS – appeal by way of rehearing – whether decision should be affirmed on grounds other than those specified in the primary judgment

STATUTORY INTERPRETATION – Election Funding, Expenditure and Disclosures Act 1981 (NSW) – construction of exemption for candidates self-funding own election campaigns – where donations by candidates to party which endorsed them for State election exceeded $5000 cap imposed on political donations to a political party – whether permissible for party which has endorsed candidate to accept candidate’s funds within the exemption or whether such funds constitute political donation – whether donations lawful self-funding contributions to the candidates’ election campaigns pursuant to s 95A(4) of Election Funding, Expenditure and Disclosures Act 1981 (NSW)

CIVIL PROCEDURE – application for leave to appeal – where dispute about terms of agreement for installation and provision of security cameras – where primary judge disbelieved applicant – where primary judge made findings of fraud and lying under oath against applicant – where applicant made complaint to Judicial Commission while primary judgment reserved about manner in which primary judge conducted hearing – where applicant did not suggest in complaint or otherwise that primary judge should recuse himself – where no reference to complaint in primary judgment – whether arguable basis for apprehended bias demonstrated by primary judge’s failure to refer to complaint – whether incontrovertible facts or uncontested testimony identified demonstrated on arguable basis that primary judge’s rejection of applicant’s evidence erroneous – Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 CIVIL PROCEDURE – application for leave to appeal – agreement for installation and provision of security cameras – whether primary judge erred in reliance on expert evidence in calculation of quantum meruit – where quantum meruit calculations would, if successful, make a difference of $6044.56 to judgment amount – where costs likely to swamp small money sum involved in dispute – necessity of finality in litigation

CONTRACTS – Construction – Interpretation – agreement required an auditor to “determine” a price for shares – whether the agreement required the auditor to determine a single price – whether the auditor had in fact determined a single price VALUATION – Value – Market value – agreement required an auditor to determine a “price” for shares – whether the agreement required the auditor to determine the price based on market value or to determine a fair and reasonable price

CONTRACTS – construction – policy of professional indemnity insurance – whether on the proper construction of the policy the appellants were deemed to have consented to Lawcover’s decision not to appeal the decision in Young v King (No 11) – whether on the proper construction of the policy the appellants were entitled to bring an appeal in their own names CONTRACTS – construction – good faith – whether Lawcover acted in bad faith in defending the proceeding subject of Young v King (No 11) - whether Lawcover acted in bad faith in refusing to appeal from the decision in Young v King (No 11) INSURANCE – Insurance Contracts Act 1984 (Cth) – duty of good faith – whether clauses in professional indemnity insurance policy contravened Insurance Contracts Act 1984 (Cth), s 52 – whether the policy offended the good faith provisions of the Insurance Contracts Act 1984 (Cth) APPEALS – failure to give reasons – whether the primary judge failed to give adequate reasons for his conclusion that Lawcover had not failed to act in good faith APPEALS – apprehended bias – whether the reasons of the primary judge supported a reasonable apprehension of bias

ENVIRONMENT AND PLANNING – Environmental planning instruments – Local environment plan –Liverpool Local Environmental Plan 2008 – Environmental Planning and Assessment Act 1979 (NSW), Pt 3 Div 4 – Planning proposal – State Environmental Planning Policy No 55, cl 6 – whether obligations in State Environmental Planning Policy No 55, cl 6 engaged when planning proposal considered by Local Council – whether obligations in State Environmental Planning Policy No 55, cl 6 engaged when delegate of the Greater Sydney Commission made gateway determination pursuant to Environmental Planning and Assessment Act 1979 (NSW), s 56 – whether Local Council failed to comply with obligations in State Environmental Planning Policy No 55, cl 6 – whether delegate of the Greater Sydney Commission failed to comply with obligations in State Environmental Planning Policy No 55, cl 6 – whether compliance with obligations in State Environmental Planning Policy No 55, cl 6 a mandatory pre-condition to valid exercise of power STATUTORY INTERPRETATION – Environmental Planning and Assessment Act 1979 (NSW), Pt 3 Div 4 – State Environmental Planning Policy No 55, subcl 6(1) – whether “preparing” an environmental planning instrument includes preparing a planning proposal – State Environmental Planning Policy No 55, subcl 6(2) – whether proposed amendment to local environmental plan involves “including land” in a “particular zone”

CRIMINAL LAW – murder – trial by judge alone – appeal against conviction – applicant stabbed ex girlfriend – applicant immediately stabbed himself in chest and neck afterwards – evidence of applicant that stabbing accidental – common ground that evidence of applicant should be rejected – applicant also raised defence of substantial impairment – Crown case circumstantial – necessity to consider all circumstances established by evidence – Crown established deceased broke relationship off with applicant and applicant distressed by breakup – only rational inference that applicant intended to kill deceased – substantial impairment – applicant affected by Obsessive Compulsive Disorder and Borderline Personality Disorder – applicant established abnormality of mind due to underlying condition – failure to establish substantial impairment of capacity to understand events or judge whether actions right or wrong – absence of reliable narrative from applicant – whether impairment of capacity to control himself established by applicant – whether trial judge gave determinative weight to the importance of planning – whether trial judge failed to properly assess the opinions of Dr Nielssen and Dr Furst and adequately explain why he did not accept their opinions – whether error in trial judge’s finding that in the absence of a credible narrative from the applicant as to when he formed the intention to kill and what steps he took to give effect to that intention, the applicant had not discharged the onus on him under s 23A Crimes Act 1900 (NSW) – whether guilty verdict unreasonable – trial judge correct to find that applicant had failed to establish substantial impairment of capacity to control himself – failure to make out partial defence of substantial impairment – conviction appeal dismissed – SENTENCE APPEAL – murder – applicant convicted following judge alone trial – applicant rendered himself quadriplegic following murder of his girlfriend – applicant suffering from Borderline Personality Disorder – applicant suffering from Obsessive Compulsive Disorder – contribution of mental state to offending – whether error in sentencing judge’s consideration of the need for general deterrence – whether sentencing judge fettered his discretion when considering extra curial punishment – whether sentencing judge should have taken into account the applicant’s self-inflicted injuries as a mitigating factor – whether his Honour erred in failing to find special circumstances – whether his Honour erred in failing to take into account the applicant’s abnormality of mind and his diminished moral culpability when assessing the objective seriousness of the offending – whether sentence manifestly excessive – application for leave to appeal against sentence allowed but appeal dismissed.

CRIME – sentence appeal – knowingly take part in the cultivation of not less than the large commercial quantity of cannabis by enhanced indoor means contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the judge erred by failing to take into account that the applicant was a young adult – whether error in the judge’s findings as to the applicant’s prospects of rehabilitation – whether the judge erred by failing to have proper regard to the applicant’s evidence as to his role in the cultivations – whether the judge erred by giving disproportionate weight to general deterrence and retribution – whether the sentence was manifestly excessive – ex tempore sentencing judgment – Form 1 offence and offence on a s 166 certificate – sentence not manifestly excessive – appeal dismissed

CRIMINAL LAW – Application for leave to appeal against convictions – Child sexual assault and indecency – Where evidence in chief included four video recorded police interviews with complainant and complainant’s evidence at trial – Where complainant made concessions in cross-examination – Where jury convicted despite concessions – Whether appropriate for appeal court to view video recordings – Application for leave granted – Appeal dismissed

APPEALS – interlocutory criminal appeal by prosecutor – Criminal Appeal Act 1912 (NSW), s 5F – standard of appellate review – principles determining whether appeal in nature of House v The King or Warren v Coombes EVIDENCE – tendency evidence – appeal from rejection of tendency evidence – criminal proceedings – evidence of accused’s alleged sexual interest in pre-school aged children and to act on that sexual interest –relevance – significant probative value – prejudice based on revulsion – need for jury directions – whether probative value of evidence substantially outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 55, 97, 101 PRECEDENT – appeal upheld by High Court with reasons reserved – reliance on reasons of dissenting judge below – whether appropriate for trial court to review transcript of High Court hearing to determine law to be applied – earlier precedent applied

CRIMINAL LAW – appeal against conviction – discussion of nature of offences of manufacture and knowingly take part in manufacture of a prohibited drug – statutory interpretation – manufacture requires drug to be actually produced – criminality in this case captured by knowingly take part in manufacture – conviction for manufacture quashed – substituted conviction for knowingly take part in manufacture – re-sentence on count 2 CRIMINAL LAW – appeal against conviction – applicant convicted of manufacturing a precursor – precursor taken into account with regard to quantity of prohibited drug that could be produced for purposes of separate offence – whether conviction with regard to precursor should be quashed on the basis that no “remnant” of criminality required to be captured by it – appeal dismissed

SENTENCE – supply prohibited drug offences – methylamphetamine and cannabis – whether the sentencing judge applied the incorrect maximum sentence for the cannabis offence – error established as to maximum sentence – re-sentencing – orders

CRIMINAL LAW – sentence appeal – one count of supply a prohibited drug (heroin) – imprisonment for 4 years with a non-parole period of 2 years – whether sentencing judge erred by failing to properly give credit to reflect the time spent by the applicant in “quasi-custody” – no issue as to existence of period of quasi-custody – quasi-custody specifically referred to by sentencing judge – sentencing judge took quasi-custody into account when formulating the sentence but did not backdate the commencement date of the sentence – no obligation to backdate commencement date of sentence – period of quasi-custody taken into account – appeal dismissed.

CRIMINAL LAW – Application for leave to appeal against sentence – Robbery in company – Supply of not less than a commercial quantity of a prohibited drug – Where applicant had provided assistance to law enforcement authorities – Where primary judge stated that assistance to authorities had been exhausted in separate Local Court proceedings – Where transcript of Local Court proceedings indicated that they had not been exhausted – Where transcript was not provided to primary judge – Whether legitimate sense of grievance arising from sentence imposed upon co-offender – Application for leave to appeal granted – Appeal dismissed

CRIME – appeal against conviction – appellant convicted by jury of murder – appellant was driving, with his blood-alcohol level in excess of prescribed concentration, when his van struck and killed the deceased – appellant had an altercation with the deceased prior to the collision – appellant alleged that the collision was an accident – whether the jury verdict was unreasonable and unable to be supported by evidence – discussion of the role of an appellate court in addressing “unreasonable verdict” grounds of appeal – whether the trial judge erred in leaving to the jury evidence of the appellant’s flight from the scene, or alternatively leaving such evidence to the jury as evidence of consciousness of guilt

SENTENCING – appeal against sentence - whether sentencing judge erred in assessment of objective seriousness SENTENCING – appeal against sentence – whether conditional liberty considered as part of subjective factors or erroneously treated as going to objective seriousness

CORPORATIONS – winding up – application to stay or terminate winding up of company – where solvency of the company has not been established – where remuneration of liquidator has not been addressed – whether order staying or terminating the winding up should be made.

HIGH RISK OFFENDER – serious sex offender – preliminary hearing - application for interim supervision order – application for extended supervision order

COMMERCE — Customs and excise — Customs duties — Plaintiff served with notice of statutory demand under Customs Act 1901 (Cth) s 35A for amount payable on stolen dutiable goods — Plaintiff operated licensed Warehouse for dutiable goods in respect of Part V of Customs Act — Whether Defendant had contractual obligation to insure dutiable goods in event of statutory demand and pay proceeds of insurance to Plaintiff as recipient of demand — Insurer refused to pay demand because Plaintiff not covered by contract of insurance — Whether Defendant had knowledge that Plaintiff had assumed management of Warehouse CONTRACTS — Formation — Novation — Whether Plaintiff was substituted into contract between Defendant and original Warehouse licensee — Requirements for effective novation of contract by substitution of party — Whether effective novation where Defendant had no knowledge that Plaintiff assumed the place of third party — Relevance of intention for effective novation — Whether new contract was formed when Defendant continued to use Warehouse after learning it was managed by Plaintiff — Whether any agreement evidenced by conduct CONTRACTS — Whether adoption of contract that had previously existed between Defendant and another entity

CRIMINAL LAW – sentencing – aggravated kidnapping – vulnerable victim – constantly intoxicated – where offender originally charged with murder – plea deal – artificial sentencing exercise – ill-defined psychological advantage – chaotic lifestyle – “under-supervised” – being middle aged – drug addict, burglar and thief – intuitive conclusion offender at turning point – special circumstances

CRIMINAL LAW – sentencing – assisting others to enter Syria to engage in armed hostilities – plea of guilty – age and immaturity of offender – delay in charging – good prospects of rehabilitation – need for general deterrence and punishment

SENTENCE – offender found guilty of murder after trial by jury – two offences of dishonesty on Form 1– discussion of objective features and subjective features – criminal record for deception and solicit to murder – no remorse as offender maintains innocence – consideration of life sentence – determinate sentence imposed

EVIDENCE – admissions made to police – admissions not recorded – investigating official – official questioning – reasonable suspicion

CIVIL PROCEDURE – hearings – order that proceedings be heard together – UCPR r 28.5 – proceedings against defendant solicitors retained by each plaintiff in relation to the termination of their employment – where application made by one plaintiff but supported by other plaintiffs - whether common questions – whether rights to relief arise out of the same transactions - all plaintiffs allege negligence and breach of fiduciary duty – overwhelming similarity of pleadings – risk of inconsistent credit findings if proceedings heard separately – time and cost savings if proceedings heard together – where all proceedings at similar stage of preparedness – where cross-admissibility of evidence can be dealt with so as to prevent forensic disadvantage to defendant CIVIL PROCEDURE – notices to produce – before hearing – relevance to a fact in issue

CIVIL PROCEDURE – appeal – security for costs – security for costs by way of caveatable interest over property owned by third party – property subject of testamentary trust – whether property acceptable as security – further opportunity to provide acceptable security CIVIL PROCEDURE – variation of interlocutory order – exercise of liberty to apply – whether notice of motion required – whether respondents knew of nature of owner’s interest in property when order for security made – whether variation warranted

APPEAL – appeal to District Court – care and protection proceedings – extent to which court should depart from course agreed upon by parties – power of court to examine and cross-examine witnesses CHILD WELFARE – care and protection – final care orders – whether Court required to consider care plan and make findings regarding permanency planning before making orders granting parental responsibility for child to parent – whether such orders are “final care orders” – whether “final care orders” limited to orders removing child from parents on Secretary’s application – Children and Young Persons (Care and Protection) Act 1998, ss 80, 83 CHILD WELFARE – care and protection – nature of proceedings – obligation not to conduct proceedings in adversarial manner – power of court to examine and cross-examine witnesses – content of procedural fairness – extent to which court should depart from course agreed upon by parties – Children and Young Persons (Care and Protection) Act 1998, ss 93, 107 CHILD WELFARE – care and protection – procedural fairness – obligations to child, parents of child and Secretary, Department of Family and Community Services – whether procedural fairness required adjournment where trial judge departed from case put by appellant and respondent sought to adduce further evidence JUDICIAL REVIEW – procedural fairness –content – scope of obligation to accord in non-adversarial jurisdiction STATUTORY INTERPRETATION – immediate context – structure of statute – importance of reading provisions in context and with regard to internal structure WORDS AND PHRASES – “final care orders” – “proceedings… are not to be conducted in an adversarial manner” – Children and Young Persons (Care and Protection) Act 1998, ss 78, 80, 83, 93

LAND LAW – fraud – appellant alleged his signature was forged on transfer of half-share in property to his mother – primary judge found appellant had signed transfer – whether trial judge misunderstood evidence regarding transcripts of telephone conversations between appellant and his sister – whether trial judge impermissibly refused to admit evidence – whether self-represented litigant’s experience with former solicitors provided basis for overturning decision below – whether self-represented litigant’s fatigue in cross-examination provided basis for overturning decision below

TORTS – negligence – no duty to warn of obvious risk – plane collided with kangaroo at regional aerodrome – whether damage to aircraft materialisation of obvious risk – whether risk defined by level of risk and likelihood of materialisation – whether accessing information from website involved requesting advice or information – Civil Liability Act 2002 (NSW), ss 5F, 5G, 5H TORTS – negligence – public authority – allocation of resources – principle that allocation of resources not open to challenge – Civil Liability Act 2002 (NSW), ss 42(a), 42(b)

LAND LAW – possible existence of Aboriginal objects in or on land the subject of a contract for sale – whether primary judge erred in answering separate question regarding whether alleged Aboriginal objects were capable of constituting a defect in title – separate question hypothetical – whether primary judge erred in finding alleged Aboriginal objects were not capable of constituting a defect in title

INJUNCTIONS – interlocutory hearing – disputed – question of fact – proof of foreign law – uncertainty EVIDENCE – expert opinions – interlocutory hearing – opinions not reconcilable – continuation of injunctions

DEFAMATION – defences – defences of truth and contextual truth – dispute as to particulars capable of supporting defence – proposed new contextual imputation – whether capable of meeting elements of defence CIVIL PROCEDURE – application to have issues of liability and damages severed – where evidence in respect of damages potentially also relevant to contextual truth defence COSTS – determination of multiple interlocutory applications over several days – rough estimate as to costs following the event

HIGH RISK OFFENDER – preliminary hearing – application for extended supervision order – assessment of whether defendant poses an unacceptable risk – interim extended supervision order granted – no point of principle

HIGH RISK VIOLENT OFFENDER – application by State for interim supervision order – relevant principles – medical evidence – interim order made.

ADMINISTRATIVE LAW – judicial review – review of a decision of the Legal Aid Commission of New South Wales – grant of an application for legal aid subject to a condition – whether the Guidelines published by the Legal Aid Commission are properly regarded as delegated legislation – whether a condition requiring a person to procure from their spouse a charge over real property is beyond the power conferred on the Commission by the Legal Aid Commission Act

CORPORATIONS – application for continuance and variation of freezing orders under s 1323 of the Corporations Act 2001 (Cth) – where persons under investigation were held out to be key persons within the companies – whether strong prima facie case that persons under investigation had constructive notice that funds in company bank accounts were trust funds – whether strong prima facie case that the persons under investigation were not bona fide purchasers without notice – where substantial risk that funds the subject of the claim will be dissipated and aggrieved persons will be deprived of a remedy – whether the persons under investigation should be permitted to use certain funds the subject of the claim to pay living or legal expenses.

HIGH RISK OFFENDER – application for continuing detention or extended supervision order – preliminary hearing – interim supervision order conceded but interim detention order opposed – interim supervision and other preliminary orders made – no point of principle

CRIME – sentencing – manslaughter – additional offences of assault occasioning actual bodily harm taken into account – single punch – deceased sustained fatal injury upon hitting roadway – alcohol-fuelled violence – limited antecedents but in breach of conditional liberty – mental health considerations – entering custody for third time – previous custodial conditions onerous – hardship to elderly mother CRIME – sentencing – delay – six year delay caused by defence to both murder and manslaughter and appeals against conviction for manslaughter – conviction ultimately quashed by High Court of Australia – subsequent plea to manslaughter – whether sentence reduction appropriate for utilitarian value of plea – no utilitarian value in offer to plead to manslaughter before first trial where full defence pursued and subsequent appeal against conviction – small utilitarian value in plea shortly before retrial

CRIMINAL LAW - sentence - manslaughter - substantial impairment by abnormality of mind - depressive disorder - Offender killed victim by single stab wound to the neck - domestic violence - stabbing occurred after violent acts by victim towards another person and Offender - history of violence by Offender and victim towards each other during two-year relationship - Offender on good behaviour bond at time of killing for earlier offence of violence against victim - assessment of factors relevant on sentence for manslaughter - assessment of objective gravity of offence - favourable subjective circumstances of Offender - good prospects of rehabilitation

CONTRACTS - termination - breach of term - summons seeking leave to appeal judgment for defendant in the Local Court - plaintiff engaged as subcontractor to undertake construction work - where clause of contact provided for procedure to terminate upon breach, including three-day notice period to allow for rectification of breach - plaintiff did not comply with safety policy and directions - where defendant terminated under common law - whether observance of safety policy essential condition or intermediate term - whether clause stipulating procedure for termination excluded common law right to terminate - summons dismissed

REAL PROPERTY - lease - whether notice of exercise under s 129 of the Conveyancing Act 1919 (NSW) is invalid - where lease agreement included an option to renew that had to be exercised in writing within a specified time period - whether the requirement for writing was waived - whether the option to renew was exercised - whether the landlord is estopped from denying that the option was validly exercised - convention estoppel - whether the landlord and tenant acted on the common assumption that the option to renew had been exercised

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offers of compromise/Calderbank offers – Whether the plaintiff’s offers were genuine offers of compromise and whether their rejection was unreasonable – Whether a gross sum costs order would be appropriate

INSURANCE – life insurance – benefit conditional on insurer’s satisfaction as to insured member’s total and permanent disablement – overlapping obligations requiring insurer to act reasonably and fairly in considering question under policy and determining whether it was so satisfied – insurer’s outright rejection of lay witness material significant to its reasons for discounting medical expert evidence that supported insured member’s claim – unchallenged inference from absence of rational or persuasive reasons for such rejection that insurer failed to engage with material – whether breach of obligations to act reasonably and fairly

APPEALS – appeal by way of rehearing – further evidence – psychiatric reports before primary judge at hearing for sentence but not conviction – special grounds in probative value and extraordinary circumstances of appellant CIVIL PROCEDURE – parties — persons under legal incapacity – dispensation with requirement for tutor to commence and carry on appeal – substantial grounds in appeal unopposed and meritorious CIVIL PROCEDURE – suppression and non-publication – vacating of orders upon not being satisfied of necessity to protect party against self-harm CONTEMPT – civil proceedings for criminal contempt by contumacious breach of order in civil proceedings – application of Uniform Civil Procedure Rules 2005 (NSW) – application of Mental Health (Forensic Provisions) Act 1990 (NSW) – application of common-law requirement of fitness to plead – real and substantial question as to fitness to plead at conviction hearing – substantial miscarriage of justice

CRIMINAL LAW – appeal against sentence – serious drug supply offences – sentencing Judge erred in invoking concept of exceptional circumstances on sentence for drug supply offences – applicant sentenced before decision in Parente v R [2017] NSWCCA 284 – error conceded by the Crown – Court to exercise sentencing discretion under s.6(3) Criminal Appeal Act 1912 – no lesser sentence warranted – appeal dismissed

EVIDENCE – relevance – document prepared by police officer for coronial inquest in 1986 – where document addressed police investigations and the witness’ opinions on the connection between the accused and the crimes charged – where the adequacy of the police investigation and the reasons for witness’ conclusions were put in issue in cross-examination – non-hearsay purpose – no unfair prejudice to accused – document admitted subject to a limitation on use

CORPORATIONS – External administration – liquidation – administration of trust property of corporation – where residuary funds held on trust for numerous potential claimants whose claims cannot be proved or distinguished – held, liquidator would be justified in distributing residuary fund after paying proved claims equally between the potential claimants and that this would be preferable to payment into court