Cases and authorities

CIVIL PROCEDURE – application for correction to earlier reasons pursuant to UCPR r 36.17 or in the Court’s inherent jurisdiction – substantive matter inadvertently overlooked – slip rule may not apply – consideration of overriding purpose – discretion by the Court to withdraw reasons for the purpose of correction within inherent jurisdiction – correction of earlier reasons by withdrawal of earlier judgment and publication of new judgment

SUCCESSION – testamentary capacity – testator makes a will in December 2014 – will witnessed by two solicitors, one of whom took instructions for the drafting of the will – the principal beneficiary of the will was present throughout the taking of some instructions and the execution of the will – the testator has no children – incorrect representations made to the solicitor that the principal beneficiary was the daughter of the testator and that the alternative beneficiary under the will, the principal beneficiary’s husband, was the son-in-law of the testator – testator had nephews – nephews benefitted under testator’s previous 2001 will – nephews not mentioned in discussions with solicitor before December 2014 will – whether the testator knew and approved the contents of the December 2014 will – whether the testator appreciated the extent of her estate and the claims upon her bounty in December 2014 – whether the testator suffered from delusions that the principal beneficiary was her daughter and the alternative beneficiary was her son-in-law – shortly after the December 2014 will was made the principal beneficiary removed the testator away from friends and relatives – whether the principal beneficiary exercised undue influence over the testator at the time of the making of the will. FAMILY PROVISION – whether the plaintiffs were left without adequate provision from the estate of the testator for their proper maintenance, education or advancement in life – whether the plaintiffs are eligible persons able to claim for provision from the estate because they lived with the testator and were dependent upon her – what order for provision out of the estate should be made in the circumstances, if any.

CRIME – appeal against sentence - dealing with money in excess of $1,000,000 with the intention it would become an instrument of crime contrary to s 400.3(1) of the Criminal Code –utilitarian considerations not taken into account when allowing a discount for the plea of guilty – re-sentence – sentencing guidance for s 400.3(1) of the Criminal Code – offences on a s 16BA document – whether the applicant’s prior criminal history was an aggravating factor – specific deterrence – general deterrence – no lesser sentence warranted

APPEALS – application for bail – applicant charged with armed robbery offences – applicant on bail at time of offences – show cause offence – reasonably strong Crown case – applicant contended bail necessary for him to care for his mother – applicant’s mother diagnosed with dementia, diabetes and lung disease – applicant with long criminal record and multiple breaches of bail – paucity of evidence as to need for applicant to care for his mother – cause not shown.

CRIMINAL LAW – appeal against sentence – aggravated dangerous driving occasioning grievous bodily harm contrary to Crimes Act 1900 (NSW), s 52A(4) – failure to stop and assist after vehicle impact causing grievous bodily harm contrary to Crimes Act, s 52AB(2) – high-speed front-to-rear collision causing victim’s vehicle to leave the road – multiple fractures to left arm of victim – major lacerations to face, head, neck and scalp – vertebral fractures – traumatic brain injury – guilty pleas – 25% discount for utilitarian value of pleas – aggregate sentence of imprisonment for 4 years with non-parole period of 2 years 6 months at first instance – where offender affected by psychosis at time of offence – where accepted by sentencing judge that mental health condition contributed materially to commission of offences – whether sentencing judge failed to take into account reduced moral culpability due to causative link between mental condition and offending in determining objective seriousness of offence – whether sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – sentence appeal – aggregate sentence – serious drug supply and related offences – form 1 offences – pleas of guilty – indicative sentences – whether the applicant has a justifiable sense of grievance as a result of the indicative sentence – whether the sentencing judge erred in assessing the objective gravity of the supply of a commercial quantity of drug offence – parity principle – role in drug offences – no lesser sentence warranted in law

EVIDENCE – admissibility of expert evidence relating to handwriting – where the expert has not identified all the documents relied upon – where the expert has expressed his opinion based on examination of photocopies of original documents - the evidence is relevant and admissible

RESTRAINING ORDER – no question of principle

CRIMINAL PROCEDURE – whether evidence of Crown witness should be taken by use of audio-visual facilities – evidence of psychiatric conditions suffered by witness – fitness of the expert witness to give evidence likely to be detrimentally affected if he was required to attend court in person – consideration of practical and technological limitations – ability of court to assess credibility – order made under Evidence (Audio and Audio Visual Links) Act 1998, s 5B(1)

Transfer of proceedings – doubt about District Court jurisdiction

CORPORATIONS – winding up – application for the appointment of a provisional liquidator – company unable to meet obligations to creditors after business of the company transferred to third party – company unable to pay fees to administrator

PLEADINGS – withdrawal of admission – no question of principle

SUBPOENAS – no question of principle

CONTEMPT OF COURT – procedural breach – failure to comply with order to serve affidavit by specified date – discretion to refrain from making declaration

EQUITY — Trusts and trustees — Judicial advice — Lost trust deeds

JUDGMENTS AND ORDERS — Enforcement — Writ for possession of land

BUILDING AND CONSTRUCTION – separate questions – “owner” – Home Building Act 1989 – whether development manager and another party named in development management agreement were owners and thus developers of land for the purposes of the Home Building Act 1989 BUILDING AND CONSTRUCTION – separate questions – “contract to do residential building work” – Home Building Act 1989 – development management agreement – whether development management agreement is a contract to do residential building work MISLEADING OR DECEPTIVE CONDUCT – separate questions - representations made to principal certifying authority under Environmental Planning and Assessment Act 1979 – whether made in trade or commerce

CRIMINAL LAW – admission of tendency evidence – tendered by prosecution – statutory test – application of test to evidence on voir dire

Civil Procedure – summary dismissal – pleadings –Uniform Civil Procedure Rules 2005 (NSW), 13.4 – whether a reasonable cause of action is disclosed – duty of care – whether duty of care is inconsistent with statutory duties – Police Act 1990 (NSW), s 136 – whether duty of care is a personal duty – whether duty of care is retrospective – whether pleading of breach of duty of care is deficient – Civil Procedure Act 2005 (NSW), s 56 Civil Procedure – limitation period – Limitation Act 1969 (NSW) – whether cause of action is statute barred – notion of motion seeking extension of limitation period filed out of limitation period – disability – Limitation Act 1969 (NSW), s 52 – whether application for extension of time is arguable

CONSUMER LAW – misleading and deceptive conduct – sale of residential property – pre-sale statements as to availability of private parking made by respondent real estate agent orally and in advertising material – whether primary judge erred in finding that real estate agent engaged in misleading and deceptive conduct but did not cause purchaser any loss – whether primary judge erred in accepting respondent’s valuation evidence – whether primary judge erred in finding purchaser two-thirds contributorily negligent – whether primary judgment could be supported on alternative ground that reasonable purchasers would have understood that real estate agent was merely passing on information obtained from the vendor and was thus a mere conduit

APPEAL – application for leave to appeal against order dismissing proceedings for want of due despatch and abuse of process – no issue of principle

APPEAL – application for leave to appeal against refusal to set aside default judgment – no issue of principle

APPEAL – application for leave to appeal against order dismissing proceedings for want of jurisdiction – no issue of principle

PLEADING – no question of principle

TRUSTS – applications by trustees – judicial advice – “winding up” of trust – where liquidator of trustee appointed as replacement trustee – where right of indemnity will exhaust trust assets – whether court should declare trust terminated or advise trustee that justified in acting on basis that terminated – whether trustee can retire – whether court should give leave to trustee to retire

ESTOPPEL – Promissory estoppel – Plaintiff claimed to have relied upon expectation or assumption created by representations by the deceased that upon sale of her property at Granville the plaintiff would be entitled to use of the proceeds and that the deceased would leave her entire assets as a gift to the plaintiff – Representations allegedly contained in a Macedonian Power of Attorney and Contract for a Gift allegedly executed by the deceased in October 2009 – Whether the documents, if authentic, contained the pleaded representations – Whether the plaintiff relied on the representations as pleaded such that detriment would now be suffered if the expectation or assumption not fulfilled – Held plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded – Claim for relief on basis of promissory estoppel dismissed EQUITY – Undue influence – Presumption of undue influence where documents executed by grandparent in favour of grandchild – Held presumption had not been rebutted in relation to Macedonian Power of Attorney – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect EQUITY – Unconscionable conduct – Whether execution by the deceased of the Macedonian Power of Attorney was affected by unconscionable conduct – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect

SUCCESSION – Wills, probate and administration – Construction and effect of testamentary dispositions – Where testator devised whole real property and residue of personal property to a named trust – Where the named trust was the subject of court orders in 2008 for administration cy-près – Held the named trust had “ceased to exist” within the meaning of the Will and the executor was entitled to select another charitable organisation as the residuary beneficiary

HIGH RISK OFFENDER – extended supervision order – whether Court satisfied to high degree of probability that offender poses unacceptable risk of committing another serious offence if not kept under supervision – offender convicted of sexual assaults – offender diagnosed with schizophrenia and substance use disorder – subject to Guardianship order – offender at high risk of committing another serious offence.

SUCCESSION – Forfeiture under public policy rule – Testator killed by beneficiary but beneficiary not guilty of murder by reason of mental illness – Application under s 11 of the Forfeiture Act 1995 (NSW) that the forfeiture rule apply – Whether justice requires that the rule be applied – Forfeiture rule applied subject to terms and conditions JUDGMENTS AND ORDERS – Orders on terms or conditions – s 86 Civil Procedure Act 2005 (NSW) – Whether Forfeiture Application orders can be made on terms or conditions – Where statutory language differs between Forfeiture Modification and Forfeiture Application orders – No bar on making Forfeiture Application orders on terms or conditions – Terms and conditions imposed CRIMINAL LAW – General matters – Criminal Liability and capacity – Verdict of not guilty by reason of mental illness – Effect of verdict on entitlement to inherit from victim’s estate – Forfeiture rule - Application of the Forfeiture Act 1995 (NSW) – Whether accused to be treated as if found guilty of murder

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – primary judge summarily dismissed proceedings on basis that defendant did not owe plaintiffs a duty of care – where weight of current authority against existence of duty of care – where argument available that common law should be extended to recognise duty of care – whether proceedings should have been summarily dismissed NEGLIGENCE – duty of care – police officers – plaintiffs allegedly discovered remnants of deceased family member at scene of fatal motor vehicle accident – plaintiffs alleged negligence of police officers in failing to remove remains from accident scene caused them psychological injury – whether reasonably arguable that officers owed plaintiffs duty of care – whether officers assumed responsibility at accident scene – whether duty would give rise to incoherence or inconsistent obligations –salient features analysis – relevance of principle in Hill v Chief Constable of West Yorkshire [1989] AC 53 NEGLIGENCE – public authorities – duty of care – circumstances in which public authorities will owe duty of care in performance of statutory functions – whether duty of care precluded on basis it gives rise to inconsistent obligations – consideration of Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

APPEALS – appeal by way of rehearing – grounds of appeal – procedural fairness – where lack of procedural fairness in court below relied on as ground of appeal in appeal by way of rehearing – whether unfairness demonstrated CIVIL PROCEDURE – interlocutory applications – review of interim and interlocutory orders – where trial judge revoked orders previously made ex parte – whether change of circumstances required to be shown before discretion regarding orders exercised afresh CIVIL PROCEDURE – interlocutory applications – ex parte –when urgent ex parte orders should be made - obligation of candour and to assist court DEFAMATION – remedies – interim and interlocutory injunctive relief – suppression orders, take-down orders and injunctive relief – circumstances in which relief should be ordered or revoked – relevance of freedom of expression – relevance of delay in pursuing proceedings – relevance of defendant’s ongoing defiance of orders TORTS – injurious falsehood – interlocutory injunctions – freedom of expression – whether freedom of speech relevant – relationship between defamation and injurious falsehood

CRIMINAL LAW – Sentence – Standard of proof for finding facts adverse to the offender – whether sentencing judge made findings of fact adverse to the offender beyond reasonable doubt – whether it was open to sentencing judge to make findings beyond reasonable doubt

CRIMINAL LAW – sentence appeal – aggravated dangerous driving occasioning grievous bodily harm – whether the sentencing judge erred in failing to backdate the sentence to allow for a period of quasi-custody – residential rehabilitation program – whether sentence was manifestly excessive – satisfied of quasi-custody

CIVIL PROCEDURE – Statement of claim – Amendments – No point of principle

DEFAMATION – trial by jury – defence of justification – defence of honest opinion – questions to be put to jury – order of questions

CIVIL PROCEDURE – application for claim to be summarily dismissed or struck out

APPEAL – appeal from Magistrate – jurisdictional error in annulment of conviction and sentence where defendant appeared before court – attempt by Magistrate to effect just result – orders quashed ADMINISTRATIVE LAW – recording of conviction and imposition of sentence vitiated by misunderstanding by Magistrate that powers of annulment could immediately thereafter be exercised – denial of natural justice – finding and sentence imposed without reasonable opportunity to prepare defendant’s case, without evidence and without agreed facts – orders quashed

APPEALS – appeal from the New South Wales Civil and Administrative Tribunal Appeal Panel – whether question of law – principles governing ground of leave to appeal – whether the appeal panel erred in law in failing to provide procedural fairness or “partiality” – plaintiff failed to establish proper basis for grant of leave to appeal – leave to appeal refused

ADMINISTRATIVE LAW – appeal from decision of medical assessors review panel – whether panel fully considered material – whether panel should have conducted a clinical examination – whether panel applied guidelines

PRACTICE AND PROCEDURE – civil proceedings – appeal – application to vacate hearing date – lack of legal representation – whether legal representation likely to be forthcoming – inability to meet costs order – personal distress suffered by respondent

NEGLIGENCE – damages – respondent sued appellant for personal injuries sustained in motor vehicle accident – whether primary judge misapprehended circumstances of accident – whether primary judge’s alleged misapprehension led to erroneous findings as to respondent’s injuries – whether primary judge erred in assessment of damages

DUST DISEASES – damages for loss of capacity to provide gratuitous domestic services – s 15B Civil Liability Act 2005 (NSW) – whether damages awarded for loss of capacity to provide care for gratuitous domestic services allows for damages for loss of capacity to provide passive care – whether damages can be awarded if care provided by claimant and other person jointly – whether damages can be awarded if alternative carer would provide services in absence of claimant – whether primary judge provided adequate reasons – where primary judge admitted whole of report of geriatrician opining as to number of hours of care provided by claimant – discussion as to construction of s 32(1) Dust Diseases Tribunal Act 1989 (NSW) – appeal dismissed

BAIL – release application – show cause offence – where previous application refused by the Court – where all relevant material presented in the first application – where no change in circumstances

BAIL – release application – show cause offence – where applicant unable to show cause – where Crown case could not be regarded as weak

SENTENCING – remarks on sentence – murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) – where offender intended to inflict grievous bodily harm by shooting the deceased in the leg – where offender on ice and other drugs – where a lack of planning and impulsivity was involved SENTENCING – remarks on sentence – unauthorised possession of a firearm contrary to s 7 of the Firearms Act 1996 (NSW) – where pistol loaded – where offender had access to other ammunition – where possession of the pistol was not an isolated event – where offender coupled with offender’s use of ice and other drugs – where pistol had been misplaced by the offender at a brothel/strip club

ESTOPPEL by conduct — General principles — Claim by ex-husband that he did not seek property settlement in 1992 in reliance on deceased’s representation that she would leave him the matrimonial home to which he had allegedly contributed to mortgage repayments — Plaintiff’s evidence including conversations with deceased not capable of corroboration and insufficient to establish claim SUCCESSION — Family provision and maintenance — evidence — Claim by ex-husband — Application to extend time — Whether factors warranting — Succession Act 2006 (NSW), s 59(1)(b) EVIDENCE — Affidavit evidence — Non-English speaking witness — How affidavit to be prepared — Bilingual legal representative not to perform role of interpreter — Judicial Council on Cultural Diversity, “Recommended National Standards for Working with Interpreters in Courts and Tribunals”

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – respondent (contractor) has benefit of determination as against applicant (principal) to the sum of $220,000 – application by principal to continue a stay of orders preventing that sum being paid out of court to the contractor – basis for application is danger that a successful counterclaim by the principal will remain unpaid – necessary to point to more than mere risk of insolvency to justify stay – where contractor has engaged in corporate activities which justify suspicion – where contractor has placed unsatisfactory evidence of its financial position before the court – continuation of stay warranted.

CORPORATIONS – winding up – liquidators – order sought for release of liquidator and deregistration of company.

CORPORATIONS — Winding up — Court ordered winding up — Termination of winding up — Change of address not notified to ASIC — Where statutory demand and originating process not brought to the attention of directors — Grounds for termination of winding up — Termination of winding up ordered

MENTAL HEALTH – forensic patient – application for extension order – defendant with schizoaffective disorder – where the statutory test for the order conceded – length of order in issue