Cases and authorities

APPEAL – stay application allowed – absence of stay might render appeal nugatory – no issue of principle

EVIDENCE – admissibility of police running sheet recording details of the seizure of evidence from accused’s home – relevant and admissible – no limitation on use to be imposed – no point of principle

COSTS – plaintiff’s application for costs following the late abandonment of an interested party’s application opposing access to documents produced on subpoena

DEFAMATION – pleadings – application to strike out statement of claim – plaintiff unrepresented –objections resolved or accepted by plaintiff during argument – pleadings not containing allegations of facts, matters and circumstance relied upon to support central allegations – pleadings intermingling an apparent specification of the imputation and the extract of the matter complained of relied upon to convey that imputation – pleadings asserting propositions of law

CIVIL PROCEDURE — notices to produce — where both parties issued notices to produce in respect of pending hearing of an application for security for costs — whether it is “on the cards” that production under notice will materially assist on an identified issue

CIVIL PROCEDURE – Commencement of proceedings – Leave to commence action – Commencement of proceedings against company in voluntary administration under s 500(2) of the Corporations Act 2001 (Cth) where the plaintiff is also a group member in representative proceedings

CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in convening extraordinary general meetings of unitholders to implement the proposed trust schemes – whether proposed amendments are within the powers of alteration conferred by the constitutions of the managed investment schemes and s 601GC of the Corporations Act 2001 (Cth).

CRIMINAL LAW – sentence – dishonestly using position as a director to gain benefit – impact on shareholders and investing public – prior good character of limited weight – contrition genuine – plea of guilty at earliest reasonable time – very high objective seriousness – importance of general deterrence CRIMINAL LAW – parity with co-offender – less serious – smaller amount of money taken – integral to whole offending

COSTS – costs of interlocutory proceedings – whether costs should be in the cause – whether non-party to the motion should be required to pay the successful respondent’s costs – where non-party was the driving force behind the litigation – where ordering otherwise would require the respondent to subsidise litigation against itself – whether costs should be assessed on the indemnity basis – where length of hearing was inordinately prolonged by the applicant’s conduct.

APPEALS – by leave on question of law – leave granted as questions of statutory interpretation arise – benefits of authoritative decision STATUTORY INTERPRETATION – exemption order made under Shops and Industries Act 1962 (NSW) – construction of transitional provisions in Shop Trading Amendment Act 2009 (NSW) STATUTORY INTERPRETATION – right conferred on representative of industrial organisation to apply for review to Civil and Administrative Tribunal – plain meaning of words exclude right of industrial organisation itself to apply

CRIMINAL LAW – trial by Judge alone – killing by ex-wife following bitter family law dispute – reasons for decision – relevant legal principles – where deceased hoodwinked and ambushed – where allegations of child abuse made to accused – where accused survivor of childhood sexual assault – where accused not believed as a child – attempt to extract confession by violent means – where accused suffered various mental conditions – where conditions arose out of abuse – self-defence – defence of others – substantial impairment – loss of self-control – community standards – community understanding of impact of child sexual abuse – motive – where obscene text messages showed considerable animosity towards deceased – love/hate – unfiltered stream of consciousness – whether hatred and disappointment true motivation for killing – whether defence of children and substantial impairment used as a convenient excuse to kill a man she hated CRIMINAL LAW – weird aspects of evidence – exorcism – flying saucers – where deceased a demonologist, exorcist and ghost hunter – whether exposing young children to bizarre paranormal activity – discombobulating for a child – whether relevant to mother’s claim of defence of others – where accused said to be “pagan white witch” – voodoo doll – spells CRIMINAL LAW – joint criminal enterprise – whether co-accused fiancé party to joint criminal enterprise – intention – where intention of principal offender changes – where ex-wife committed most acts of violence – loss of self-control by co-accused – admissions – consciousness of guilt

CRIMINAL LAW – suppression orders – non-publication orders – necessity – identity of children – family court proceedings – where statutory prohibition on publication – whether necessary or appropriate to make orders – where material subject to statutory prohibition adduced in evidence – where knowledge of material necessary for understanding of judgment – pseudonym orders

EVIDENCE – inspection of scene of events giving rise to charge of accessory after the fact – joint application – relevant considerations – no question of principle

CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — Enforcement of settlement —Defendant submits that possible judgment in other proceedings will enable payment of settlement — Application brought in District Court to set aside settlement — No application for stay of Supreme Court proceedings — Judgment entered pursuant to settlement.

CIVIL PROCEDURE – Cross-vesting – Transfer to other Supreme Court – Relevant factors

CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – where mental illness – where low end of moral culpability and objective seriousness – where contrition and remorse – where early guilty plea – where special circumstances

CRIMINAL LAW – appeal from Local Court – offence of exceeding speed limit by more than 10 kilometres per hour – defendant requested further information about speed measuring device for expert report – magistrate held no power under s 28 of the Local Court Act 2007 (NSW) to order further information – even if power existed, magistrate refused to exercise discretion in circumstances –available alternatives to gather information – whether s 28 means that magistrate can utilise discretion to order more information – whether magistrate’s exercise of discretion unjust or unreasonable – consideration of ss 140 and 141 Road Transport Act 2013 (NSW) – ability of defendant to rebut the presumption of accuracy of speed measuring device – no error in exercise of discretion – appeal dismissed

WORKERS’ COMPENSATION – proceedings to obtain compensation – work injury damages -preliminary requirements – whether plaintiff entitled to file statement of claim – whether statement of claim materially different from that proposed in pre-filing statement – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 318 – where plaintiff injured back in course of employment – whether pleading as to material facts of causation of injury differed – where occurrence of a fall asserted for first time in statement of claim – whether defendant estopped from relying on s 318 when it did not assert that pre-filing statement was defective pursuant to s 317 – meaning of “defective” – whether leave should be granted for filing of statement of claim – whether “material concerned” was not reasonably available to the plaintiff

CRIMINAL LAW – trial by Judge alone – application brought late – whether leave should be granted – where one of three accused did not make election until week before trial due to commence – explanation for late application – where prosecution consent to a trial by Judge alone – operation of statute – stuck with it – application granted

CIVIL PROCEDURE – procedural irregularity – whether the appellant should bring separate proceedings – whether the Court should consider the appellant’s claim under s 118 of the Motor Accidents Compensation Act 1999 (NSW) to recover monies paid to the respondent under s 83 RESTITUTION – statutory claims – false or misleading statements – Motor Accidents Compensation Act 1999 (NSW)

ENVIRONMENT AND PLANNING – development consent – where subject matter of consent “Internal alterations, enclosure of rear patio, awning over patio and part of beer garden and use of beer garden” of hotel – where works authorised by consent never undertaken – where appellant sought to enforce consent condition prohibiting the playing of music in hotel beer garden – whether consent lapsed – whether certain works undertaken before consent granted prevented its lapse – whether the “use” of beer garden after consent granted prevented its lapse – whether Court would decline to grant relief on basis that a later consent sufficiently regulated noise

CORPORATIONS – Winding up – Statutory demand – Application to set aside – application made outside the time prescribed by s 459G – whether an estoppel can operate to preclude a creditor from claiming that the application was made outside the time prescribed by s 459G

SUCCESSION — Family Provision — Settlement of Proceedings — Agreement reached between the parties at mediation — Application made by two non-executor beneficiaries under the will of the deceased who oppose the proposed settlement — Applicants chose not to appear at hearing — Whether, and to what extent, the Court should give consideration to beneficiaries who are not happy with the settlement reached by an executor — Whether Court should make orders approving proposed settlement; HELD: Orders made approving settlement.

PRACTICE AND PROCEDURE – whether leave ought be granted to amend defence – allegation withdrawn in absence of substantiation – substantiation obtained – allegation sought to be reinstated in amended pleading

COSTS – application for permanent stay of proceedings – s 7(2) of International Arbitration Act 1974 (Cth) – consent to permanent stay – arbitration clause in contract – dispute as to costs of the motion – unnecessary to resolve whether plaintiff as respondent on the motion acted unreasonably – high degree of certainty that the motion would have been successful if fully tried – defendant awarded costs of the motion – costs payable forthwith

HIGH RISK OFFENDER - serious sex offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists or psychologists - "serious sex offence" of aggravated sexual assault –extended supervision order previously made – order due to expire – question of the need for a further order - criminal history includes numerous convictions for breaches of supervision orders - poor history of compliance with supervisory conditions – previous revocation of parole - interim supervision order made together with order for examination by two psychiatrists or psychologists

CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend its pleadings and rely upon further evidence – where plaintiff previously granted leave to rely on evidence served in the face of a guillotine order – where earlier order that if plaintiff in default of any direction or order the proceedings be dismissed – where plaintiff’s legal advisors aware that defendants preparing evidence in response – where plaintiff’s legal advisors concluded that existing evidence insufficient and required augmentation – where plaintiff’s legal advisors did not inform the defendants or the Court that further evidence be marshalled – where significant body of further evidence served without notice on the day after defendants served its evidence – where likely that defendants will have to revisit all evidence adduced so far to ascertain whether it answers evidence freshly served by plaintiff – whether plaintiff should have leave to rely upon the further evidence – whether plaintiff should have leave to amend its pleadings PROFESSIONS AND TRADES – Lawyers – whether solicitor for plaintiff should pay the costs that the plaintiff must pay the defendants by reason of leave being granted

CIVIL PROCEDURE – Representative Proceedings – whether Court has power to make an order under s 183 of the Civil Procedure Act 2005 dispensing with compliance with the requirements of ss 175(1)(a) and 162(1)

CORPORATIONS – winding up – liquidators – application by liquidator for directions relating to distributions to creditors – Corporations Act 2001 (Cth), Sch 2 – Insolvency Practice Schedule (Corporations), s 90-15(3)(a) – where sale of the company’s assets and some employees transferred to the purchaser – dispute between liquidator and new employer concerning which employer was responsible for long service leave entitlements – where liquidator called for and ruled on proofs of debt from transferring employees – where no appeal brought against liquidator’s decision that no long service leave entitlements would be paid to transferring employees – where liquidator received legal advice which supported his decision – whether appropriate to give directions that liquidator is justified in making distributions to creditors ignoring any claims by the transferring employees for long service leave entitlements

CIVIL PROCEDURE – Notice of Motion – whether cross-claimants should be allowed to seek production of documents – 18 categories of document – too broad – relating to, concerning or pursuant to the rental payment agreement – purpose of investigation – no satisfactory or permissible explanation - leave granted to part of Exhibit attached to affidavit

SENTENCING – murder – offender shot three victims at close range with shotgun – body of one victim burned – female victim had left offender to commence relationship with a male victim – offender motivated by jealousy and humiliation – not guilty plea – whether life sentence should be imposed

SENTENCING – murder – offender stabbed victim while intoxicated by drugs and alcohol – possession of weapon with intent to cause actual bodily harm taken into account on Form 1 – offender with violent and abusive upbringing – polysubstance use disorder – lengthy criminal history – offence just below midrange of objective seriousness – Court not permitted to call up breached bonds imposed in the Local Court – expression of remorse – 20 per cent discount for guilty plea

APPEAL – leave to appeal – interlocutory order striking out solicitor’s claim to recover legal costs referable to period before costs disclosure made – submission that subsequent costs disclosure removed barriers to suing for costs for prior services – such submission at odds with statutory language and intent – no exceptional circumstances or well-based apprehension of miscarriage of justice warranting leave to appeal

CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children’s Court – where Children’s Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.

CONTRACT – whether defendants required to indemnify plaintiff for costs incurred in attempting to enforce the franchise agreement – construction of the franchise agreement and the deed of indemnity and guarantee – relevant clauses not engaged when plaintiff commences proceedings which are ultimately unsuccessful – claim dismissed.

CIVIL PROCEDURE – settlement – court approval – where proceeding commenced on behalf of minor – where settlement amount takes into account the prospect that the plaintiff may not succeed – where settlement amount disproportionately favours the defendant – settlement not approved

APPEAL – alleged denial of natural justice – summary dismissal of plaintiff’s proceedings – abundant opportunity to prepare and to present case – alleged medical difficulties in attending court – not accepted by Local Court – interlocutory decision – leave required – jurisdictional issue without merit – leave to appeal refused and, to the extent necessary, appeal dismissed.

SUCCESSION — Executors and administrators — Proceedings against co-executor — Removal sought of the co-executor by another executor to both of whom Probate had been granted — Significant delay in the administration of estate — Defendant executor has not vacated the property which comprises the primary asset of the estate — Possession of real property sought — Occupation fee or mesne profits also sought in amended Summons but not pursued following conclusion of the proceedings SUCCESSION — FAMILY PROVISION — Claim for a family provision order by Defendant in Cross-Summons — No dispute as to the Defendant’s eligibility as a person with whom the deceased was living in a de facto relationship at the time of her death — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Whether conscious and deliberate decision made by Defendant in not commencing proceedings within time — Unconscionable conduct of Defendant — Prejudice suffered by Plaintiff and other beneficiary due to delay in each receiving his entitlement under Will — Competing claim of the Plaintiff and another beneficiary, each of whom is an adult child of the deceased — Small estate in value — Provision made by deceased to Defendant in Will of half of the value of the real estate — Court not satisfied there was sufficient cause shown for the application being made out of time — Conclusion in part on the basis that the Court would not, in any event, have made a family provision order in favour of the Cross-Claimant

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – extension order – final hearing – history of schizophrenia and polysubstance abuse – index offence of aggravated sexual assault – patient exhibiting signs of improvement since extension order made in 2015 – experts of opinion that patient should remain forensic patient – Court satisfied to high degree of probability that there is unacceptable risk – risk cannot be adequately managed by less restrictive means – extension order granted for period of 3 years

LAND AND ENVIRONMENT – categorising rateable land – assessment of the rates payable by the owner of land during the period of development – whether the dominant use of land can be categorised as “for residential accommodation” when the relevant land is being developed for the purpose of the construction of residential apartments – s 516(1)(a) of the Local Government Act 1993 (NSW) considered

CRIME – appeal against conviction – offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – whether conduct of defence of co-accused caused unfairness to applicant – where co-accused pleaded guilty to another offence to engender reasonable doubt that he had the requisite mental state – where applicant did not apply for a separate trial – purported miscarriage of justice resulting from course deliberately chosen on the basis that it could result in a forensic advantage – where no ground of appeal alleging incompetency of counsel - appeal against sentence – commencement of sentence – pre-sentence custody period not taken into account – sentence backdated

COSTS – costs of successful application pursuant to Corporations Act 2001 (Cth), s 459S – discussion of the “indulgence principle” – whether it is proper to characterise an application for leave under s 459S as seeking an indulgence from the court – whether the costs of a successful s 459S application should ordinarily be costs in the cause or the plaintiff’s costs in the cause

CORPORATIONS – membership, rights and remedies – derivative action – application for grant of leave by shareholders to bring derivative proceedings on behalf of the company under Corporations Act 2001 (Cth) s 237 – whether plaintiffs acting in good faith in bringing proceedings – whether in the best interests of company that plaintiffs be granted leave – whether proposed proceedings involve a serious question to be tried.

ADMINISTRATIVE LAW – administrative tribunals – where plaintiff sought stay of proceedings before Appeal Panel of NCAT – no grounds for intervention of Supreme Court – stay refused

CIVIL PROCEDURE – service – application for leave to use affidavits under Civil Procedure Act 2005 (NSW), r 10.2 – defendants neither consent to nor oppose orders – leave granted

PROCEEDS OF CRIME – application for a forfeiture order – no exclusion application made – notice given to interested parties – orders made as sought

FAMILY LAW AND CHILD WELFARE – adoption – where child has established a stable relationship with proposed adoptive parents – whether consent of birth parents should be dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW). FAMILY LAW AND CHILD WELFARE – adoption – where there is no realistic possibility of restoration of the child to birth parent’s care – where adoption order is in the child’s best interests – where adoption is preferable to other courses – whether an adoption order should be made.

ADMINISTRATIVE LAW – judicial review - assessment of causation of neck injury by Motor Accidents Medical Assessment Service Review Panel – whether misapplication of principles of causation disclosed jurisdictional error – whether proposed surgical treatment is related to injury caused by one or more of three motor accidents – where Panel found that mild soft tissue injuries did not materially contribute to chronic degeneration but nevertheless found that proposed surgery related to accidents causing those injuries – where Panel did not make determination in respect of submissions about the persistence of symptoms of those injuries – Panel yet to determine related question of whether proposed treatment reasonable or necessary ADMINISTRATIVE LAW – prerogative writs - certiorari – need for reviewed decision to have apparent legal effect or to affect rights – declaratory relief available in circumstances where Panel decision did not have immediate legal effect

CRIMINAL LAW – APPEAL – appeal against sentence – asserted failure to have regard to limited criminal history – asserted failure to have sufficient regard to subjective case