Cases and authorities

CRIMINAL LAW – application to discharge jury – where Crown witness communicated that he recognised a juror – where the name given by the witness matched the name of the juror – where the juror was examined and denied knowing the witness - where the juror was discharged under s 53B(b) of the Jury Act 1977 (NSW) on the basis of reasonable apprehension of bias – whether the remaining jury members should be discharged under s 53C(1)(a) of the Jury Act – whether continuing with the jury poses a substantial miscarriage of justice

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 – necessary for a court exercising supervisory or prerogative jurisdiction to confine itself to its powers and not engage in merits review – where judgment of the Children’s Court appears logical and analytical on its face – no reviewable error disclosed – application dismissed – more detailed reasons to follow.

CIVIL PROCEDURE - appeals from NCAT and Local Court - tenancy dispute before NCAT - related claim for damages in Local Court - limited statutory appeals to Supreme Court - Plaintiff a legally qualified litigant in person - Defendant a crisis accommodation service - duties of litigants and Court under s.56 Civil Procedure Act 2005 - orders made for substitution and removal of Defendants - further orders made to facilitate the just, quick and cheap resolution of the real issues in the proceedings

CIVIL PROCEDURE – application to summarily dismiss cross-claim as against second cross-defendant – where factual matrix of cross-claim overlaps with earlier proceedings judicially determined – whether present proceedings should be dismissed on res judicata or issue estoppel grounds – whether proceedings should be dismissed as an abuse of process – consideration of extent of overlap between present proceedings and earlier proceedings – consideration of reasonableness in not bringing certain allegations earlier – cross-claim dismissed in part as against second cross-defendant.

CONTRACT – where parties entered into various contractual arrangements to harvest sandstone – which party is entitled to share in royalties from that harvesting – on what terms must the royalties be paid – when must payment of royalties be made. CONTRACT – whether an oral agreement or variation was made – enforceability and effect of that variation – whether contracts validly terminated – construction of the terms of contracts and subcontracts – importance of not using a hindsight view of commerciality to disregard the terms of the contract. BUILDING AND CONSTRUCTION – where milestone dates were missed – liquidated damages – application of prevention principle prevents award of such damages.

REAL PROPERTY – contract for the sale of land – whether vendor validly forfeited purchaser’s deposit – whether purchaser validly terminated contract – whether vendor complied with warranties regarding entitlement to legal and beneficial title to property – correct construction of special conditions denies right of termination – whether vendor terminated the contract for convenience – inability to infer termination by mere routine communication – whether purchaser entitled to relief against forfeiture of deposit – forfeiture of deposit was due to the purchaser’s own actions of non-compliance – no entitlement to relief.

CIVIL PROCEDURE – Separate determination of questions – Whether appropriate in the circumstances – Uniform Procedure Rules 2005 (NSW), rr 28.2 and 28.4 – Whether enforceability of Deed of Release should be heard separately CIVIL PROCEDURE – Summary disposal – Judgment for plaintiff – Uniform Procedure Rules 2005 (NSW), r 13.1 – Where admission of incident occurring is alleged

PRACTICE AND PROCEDURE – application for extension of time to apply for leave to appeal – period of unexplained delay by applicants – costs incurred by respondent seeking to enforce judgment – small amount in issue on proposed ground of appeal that is reasonably arguable – no issue of principle

WORKERS COMPENSATION – Weekly and lump sum compensation – Where employee worked in coal mine – Appeal in point of law – Whether primary judge erred in awarding weekly compensation for partial incapacity the full amount of the difference between the probable weekly amount but for the injury and the average weekly amount he was able to earn – Where exercise of discretion as to proper difference was not in dispute at trial – Appeal dismissed

CRIME – evidence – trial for engaging in a hostile activity in a foreign state (Turkey and Iraq) – admissibility of documents tending to show that the accused had fled from France whilst on bail several years earlier CRIMINAL PROCEDURE – trial judge’s unfettered discretion as to whether to order the accused to enter the dock or allow him to remain on the floor of the court and to sit down – no requirement for accused to establish a need to depart from any usual approach or to establish something “exceptional” about his or her trial

EVIDENCE – voir dire – report of Crown expert – diagram of search area after detonation of explosive device – estimations of size of explosive charge – results of laboratory examinations of device fragments – objection taken on basis of alleged non-compliance with Expert Witness Code of Conduct – report admitted on the voir dire

CORPORATIONS – deregistration – application to reinstate company – where a former director of a deregistered company received Director Penalty Notice (“DFN”) from the Australian Taxation Office (“ATO”) for the company’s failure to pay a superannuation guarantee charge – where reinstatement necessary to lodge form with ATO to off-set the amount owing under the DFN against payments made by former company – where neither ASIC nor ATO is opposed to the application

REAL PROPERTY – easements – right of carriageway – where land is subdivided but the deposited plans are not updated to reflect the benefit and burden of the right of carriageway in respect of the newly created lots – whether one of the newly created lots is entitled to the benefit of a right of carriageway – whether there is an easement pursuant to the requirements of s 88(1) of the Conveyancing Act 1919 (NSW) – whether extrinsic evidence is relevant to construing the instrument said to give rise to the easement – whether the transfer of a small portion of neighbouring land, which had the benefit of the easement, created an easement in favour of the transferee – whether there was an equitable easement – proprietary estoppel; HELD: easement did not comply with s 88(1) of the Conveyancing Act 1919 (NSW) – extrinsic material sought to be relied on in construing the relevant instrument inadmissible – transfer of neighbouring land did not result in an easement in favour of the transferee – basis for estoppel not established.

CIVIL LAW – application for summary dismissal – action against state in relation to conduct of Registrar and Judge – where conduct alleged occurred in the course of curial proceedings conducted in 2011 – allegations of negligence by original judge – allegation that judge “rebelled against his sworn oath” – where decision subject to appeal and application for special leave – principle of finality – abuse of process – judicial immunity – liability of state for actions of judicial officers – delay in publication of judgment – allegations of conspiracy between judges to defraud – allegations of perversion of the course of justice – “Judgment of Entitlement” – manifestly ridiculous

ADMINISTRATIVE LAW — judicial review — generally — whether medical appeal panel decision discloses error of law on the face of the record or jurisdictional error

CIVIL PROCEDURE — Court administration — Case management – Complex claims across jurisdictional boundaries – Management of proceedings to facilitate determination of real questions in dispute – Administration of deceased estate – Application for revocation of probate combined with derivative suit against executrix and beneficiaries designed to recover estate property allegedly misappropriated SUCCESSION – Executors and administrators – Proceedings against executors and administrators – Application to represent estate in proceedings against executrix – Whether plaintiff is an appropriate party to represent estate – Where executrix declined to assert claims of the kind sought to be made by the plaintiff on behalf of estate – Plaintiff appointed to represent the estate at own risk as to costs – Consequential case management orders made

EQUITY – constructive trusts – block of apartments converted from company title to strata title – separate lot created for parking space upon creation of Owners Corporation – all shareholders in company relinquished shares in exchange for strata title except for two shareholders – the company remains the registered proprietor of the parking space – question whether there was a common intention between company and its shareholders that the benefit of the parking space would flow to the Owners Corporation – whether company holds title to parking space upon a constructive trust – no common intention established

CONTRACTS – formation – respondent promised to give appellant money to buy house in Double Bay upon successful resolution of family law proceedings – no agreement – no intention to create legal relations – no issue of principle

CONTEMPT – application for bail pending appeal – contemnor serving term of imprisonment following conviction and sentence – appeal listed for hearing in 4 weeks’ time – strength of case on appeal – appeal confined to legal defences – interaction of Lange freedom of communication with contempt charges – effect of failure to comply with UCPR r 40.7 – failure to establish sufficient prospect of success in setting aside conviction – failure to establish sufficient prospect of Court of Appeal reducing sentence so as to render appeal nugatory – bail refused

CORPORATIONS – winding up – presumption of insolvency following failure to comply with statutory demand – primary judge found that company had discharged onus of displacing presumption – no error shown – consideration of whether presumption of insolvency applied to appeal – construction of “three months ending on the day when the application was made” in Corporations Act 2001 (Cth), s 459C(2) considered PRACTICE – appeal – requirement of leave – appeal by petitioning creditor from judgment dismissing winding up application – whether appeal was from “judgment or order ... for the winding up of a corporation” – whether appeal involved directly or indirectly any claim demand or question to or respecting property amounting to the value of $100,000 – held that appeal lay as of right – Supreme Court Act 1970 (NSW), s 101(2)(n) and (r) considered

LEGAL PRACTITIONERS – inherent jurisdiction and disciplinary powers – practitioner misappropriated funds belonging to a union and dishonestly abused a fiduciary or a quasi-fiduciary position in that union over an extended period – practitioner convicted of stealing cash and found to have contravened civil penalty provisions of the Workplace Relations Act 1998 (Cth) – whether practitioner fit and proper to remain on the roll

JUDGMENTS AND ORDERS – court of criminal appeal – amending, varying and setting aside – correction under slip rule

CRIMINAL LAW – appeal against sentence – two counts of dangerous driving occasioning grievous bodily harm contrary to Crimes Act 1900 (NSW), s 52A(3)(c) – victims injured when car crashed into home after brakes failed and steering wheel detached from column – two further offences taken into account on Form 1, namely causing bodily harm by misconduct in charge of motor vehicle contrary to Crimes Act, s 53 – further offences of failure to register and failure to insure dealt with on certificate under Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 – aggregate sentence of imprisonment for 4 years 6 months with non-parole period of 2 years 9 months at first instance – where sentencing judge criticised failure of defence to serve evidence relevant to expert opinions – where sentencing judge referred to criticism of a defence expert by Court of Criminal Appeal in a previous case – whether apprehended bias – whether error in assessment of moral culpability – whether sentence manifestly excessive – sentence found manifestly excessive and appellant resentenced

CRIMINAL LAW – appeal against sentence – causing grievous bodily harm when reckless as to causing actual bodily harm – very hot liquid poured on to six month old baby by offender – offender father of child – failure to provide adequate care to victim included on a Form 1 – errors in sentencing judgment requiring re-sentence of offender – no lesser sentence warranted in law – appeal against sentence dismissed.

CRIMINAL LAW – Crown appeal – cause grievous bodily harm with intent to cause grievous bodily harm and recruit child to carry out criminal activity – offender found guilty after trial – petrol poured over victim and then ignited – offender coerced minor into performing the acts giving rise to Count 1 – whether sentence manifestly inadequate – scarring over 45 per cent of victim’s body – lack of contrition or remorse by offender – considerable planning involved – objective seriousness towards upper level – Crown appeal made out – need to re-sentence offender.

CRIMINAL LAW – appeal – appeal against sentence – whether sentence manifestly excessive. CRIMINAL LAW – appeal – appeal against sentence – offence under s 12(1) of the Native Vegetation Act 2003 (NSW) – where another person charged under the same section – where offences of a similar nature – application of parity principle

SENTENCING – take part in manufacture of commercial quantity of amphetamine – finding of objective seriousness – sentencing judge wrongly assumed commercial quantity was 500 grams when it was 1 kg at time of offence – whether sentencing judge failed to address factors re assistance – re‑sentence – whether Court can receive further evidence concerning family circumstances – relevance and weight of that evidence – applicant re‑sentenced.

COSTS — Party/party — Capping recoverable costs in family provision proceedings — Unsuccessful plaintiff made no settlement offers — Desirability of consideration being given to binding costs budgets

COSTS – notice of motion sought to restrain defendant from calling on bank guarantee – where plaintiff withdrew application immediately prior to hearing – whether plaintiff should be ordered to pay costs on an indemnity basis – whether costs should be paid forthwith – factual matters go no further than suggesting that costs ought be the defendant’s costs in the proceedings – no question of principle.

PROCEEDS OF CRIME - restraining order made over property under Proceeds of Crime Act 2002 (Cth) - application made by company for exclusion of company’s alleged interest in property from restraint - company later deregistered by ASIC - applications for reinstatement of registration refused by ASIC - application by Plaintiff for dismissal of company’s Notices of Motion given deregistration of company - application allowed - Notices of Motion dismissed

PARTNERSHIPS AND JOINT VENTURES – dissolution and winding up – taking of accounts – surcharges

TORTS – intentional torts – false imprisonment and wrongful arrest – where no decision to charge made at time of arrest – whether arrest lawful – purpose of arrest – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 STATUTORY INTERPRETATION – contextual construction – relevance of pre-existing common law to construction of statutory scheme – principle of legality – use of legislative history and extrinsic materials WORDS AND PHRASES – “arrest” – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99

DEFAMATION – republication – liability of original publisher – where plaintiff sued source of material included in broadcast but did not sue the broadcaster – where broadcast relied upon only as to damages rather than as a separate cause of action – requirements of pleading of a cross-claim by the source against the broadcaster – requirements of pleading of claim by the plaintiff against the source

CRIMINAL PROCEDURE – application by Accused seeking an order that Crown be prohibited from calling a witness – witness alleged to have been discredited by findings of an inquiry unrelated to the present case – consideration of prosecution duty concerning the calling of witnesses – trial judge lacks power to intervene in Crown case in manner sought – application refused

CORPORATIONS — Motion for appointment of provisional liquidator brought on the basis of Termination Letter issued by third party – Termination Letter later withdrawn – Sole basis for Motion no longer exists – Motion dismissed. COSTS —Costs orders in interlocutory proceedings —Whether departure from starting point in r 42.7 UCPR warranted — Costs forthwith — indemnity costs.

ADOPTION – application for recognition of adoption order made in the United States of America – s 116 of the Adoption Act 2000 (NSW) applies only to the recognition of an adoption order made in a country other than Australia that is not a party to the Hague Convention on Intercountry Adoption or a prescribed overseas jurisdiction – the United States is a party to the Hague Convention on Intercountry Adoption – not open to the Court to make the order sought

DEFAMATION – imputations – whether imputations made out from matters complained of DEFAMATION – publication – Facebook – where defamatory posts made on public Facebook page “Narri Leaks” – relevance of Facebook “views”, “hits” and “likes” to publication – whether Facebook posts had been read and downloaded – whether plaintiff could be identified in each defamatory Facebook post DEFAMATION – defences – common law qualified privilege – whether the “Narri Leaks” Facebook page had a limited audience with a special interest –whether malice proved DEFAMATION – defences – statutory qualified privilege – Defamation Act 2005 (NSW), s 30 –whether conduct of the defendants in publishing the matter was reasonable in the circumstances – whether failure to contact plaintiff fatal to defence – whether language used was excessive and the publication itself lacked reasonableness DEFAMATION - damages – whether plaintiff entitled to aggravated damages DEFAMATION – remedies – permanent injunction

CRIMINAL LAW – sentence appeal – supply a commercial quantity of prohibited drug – participate in a criminal group – domestic violence and common assault offences – shortened firearm and possess more than three unregistered firearms, including a prohibited weapon – indicative sentences set out and aggregate sentence imposed – whether the notional starting point for some of the indicative sentences was manifestly excessive so as to indicate error in the aggregate sentence – whether an appropriate discount allowed for assistance to authorities – two co-offenders sentenced after applicant – whether differences between indicative sentences proposed for co-offenders and applicant offended the parity principle – if so whether such a discrepancy demonstrated error in the aggregate sentence – leave to appeal granted but appeal dismissed.

CRIMINAL LAW – Crown appeal against inadequacy of sentence – damage property by fire intending to injure persons and aggravated attempted break and enter with intent to intimidate – offender set fire to door of victim’s unit – offender’s child one of the persons in the unit – potential for catastrophic consequences – offender suffering from substance abuse issues and psychological deficits – offender sentenced to 2 year ICO and 1 year suspended sentence – whether proper regard had to general and specific deterrence – whether too much weight given to offender’s prospects of rehabilitation – offender remanded so as to allow rehabilitation to take place – at no time did Crown oppose the making of an ICO – although sentence manifestly inadequate Crown bound by way in which it conducted the sentence proceedings – application of residual discretion – Crown appeal dismissed.

CRIMINAL LAW – conviction appeal – judge alone trial – driver found not guilty of dangerous driving but guilty of negligent driving – whether verdict of guilty available on evidence – whether verdict of not guilty of dangerous driving inconsistent with verdict of guilty for negligent driving – no inconsistency – appeal dismissed.

CRIMINAL LAW – sentence appeal – conspiracy with co-offenders to bribe a foreign public official pursuant to ss 70.2 and 11.5 of the Criminal Code 1995 (Cth) – pleas of guilty entered by three co-offenders – two offenders were brothers and directors of engineering, infrastructure and construction company in Australia – third offender was go-between and facilitator – US$1 million transferred to Iraq for purposes of bribe – whether error in findings of trial judge as to role and involvement of offenders – whether error in finding that there was damage resulting from the offence within s 16A(2(e) Crimes Act 1914 (Cth) – whether error in failing to take into account the utilitarian value of the pleas of guilty – whether error in treatment of “good character” evidence – whether sentences involved a breach of the parity principle – appeal allowed – applicants re-sentenced.

CRIMINAL LAW - murder trial - pretrial rulings on admissibility of evidence - application of s.65 Evidence Act 1995 - rulings made

CORPORATIONS – winding up – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth) s 459H – where serious question to be tried as to whether the terms of the mortgage under which the debt is claimed could be found to be unconscionable – whether a genuine dispute has been established –whether condition should be imposed on an order setting aside the demand under Corporations Act s 459M.

PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – whether estimate of costs in the preparation and hearing of the matter involve an unnecessary level of expense – estimate of costs where legal practitioner acting for the applicant practises in State with no formal division between counsel and solicitor PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – estimating costs where there is uncertainty in the conduct of proceedings – discretion of the Court to order security be furnished in tranches – discretion of Court to make an order granting leave to apply to adjust quantum of security to reflect the actual level of expenditure on costs PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – whether the quantum of a cost order in the present case can be set-off by a cost order incurred in a previous, related matter – discretion to set-off cost orders under Corporations Act 2001 (Cth), s 1335(1) – discretion not exercised where the cost order in the previous, related matter was awarded on a joint and several basis – discretion not exercised where the Court must make an assessment of the tax liability on cost order awarded in the previous, related matter

PRACTICE AND PROCEDURE – stay – application of Trans-Tasman Proceedings Act 2010 (Cth) – multiplicity of proceedings – numerous failed interlocutory appeals – oppression – vexation – absence of proportionality – many unpaid costs orders

COSTS — Costs assessment — Application for assessment — Application to stay costs assessment pending determination of related proceedings — No issue of principle

COSTS – presumption that costs follow the event - costs are in the discretion of the court - entitlement to costs associated with the plaintiff’s abandonment of grounds 2(a)-(d)

LAND LAW – possession of land – mortgages – default – whether Defence discloses any defence to the claim – where defendant seeks time to repay – promise of money from relatives and new earning capacity - no evidence to support alleged sources of finance – defence struck out – default judgment entered

LAND LAW — Caveats — Application to lodge a further caveat in respect of the same estate, interest or right and purporting to be based on the same facts as earlier caveat which was ordered by the Court to be withdrawn – Application refused with costs COSTS — Application for costs of motion seeking leave for extension of time to file expert evidence which motion was ultimately determined by consent – Order that costs of the motion be the defendant’s costs in the cause

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – Felons (Civil Proceedings) Act 1981 – plaintiff incarcerated for serious indictable offences – claim for damages for mental harm from physical and sexual abuse suffered in custodial institutions – leave sought subsequent to commencement of proceedings – whether prima facie case demonstrated – leave granted nunc pro tunc