Cases and authorities

LAND LAW – life estate and interest in remainder – absolute gift – whether Deed of family arrangement provided for the grant of a life estate or absolute gift LIMITATION OF ACTIONS – land – Limitation Act 1969 (NSW), s 36 – claim to recognise interest under Deed of family arrangement an action to “enforce an equitable estate or interest in land” LIMITATION OF ACTIONS – land – Limitation Act 1969 (NSW), s 27(2) – claim to recognise an interest under Deed of family arrangement a “cause of action to recover land” – when cause of action to recover a life estate accrues LIMITATION OF ACTIONS – trusts – executors and administrators – alleged appropriation of estate by administrator – facts known or discoverable with reasonable diligence

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – interim supervision order agreed – appointment of experts - orders restricting access to the file without prior leave of the Court – disputed conditions – orders made

CORPORATIONS – costs – application to set aside or vary costs order – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) – where plaintiff ordered to pay the applicant’s costs following successful application to set aside winding-up order - plaintiff contends that each party should bear its own costs or plaintiff should pay only the costs of the hearing – power to vary costs order – whether applicant’s conduct unnecessarily protracted the litigation – where applicant late in filing and serving affidavit evidence – whether costs order should be varied CORPORATIONS – liquidator’s costs and remuneration – where winding-up order set aside – plaintiff contends that the liquidator’s costs should be paid by the company – whether delays by the applicant contributed to costs of liquidator – whether liquidator’s costs should be paid equally by the parties

CIVIL PROCEDURE – order for each of the plaintiffs to provide a blood sample for the purpose of whole genome testing – Uniform Civil Procedure Rules 2005 (NSW), 23.4 – Civil Procedure Act 2002 (NSW), s 56 – exercise of discretion – cerebral palsy and hypoxia – whether there is sufficient evidence that the proposed testing has the capacity to throw light on the issue in the proceedings – whether there is an issue of substance which will be illuminated by the results of the test – where testing is in a research phase – where plaintiff has undergone previous tests

ADMINISTRATIVE LAW – judicial review- whether UTS breached their Student Rules – whether denial of procedural fairness PRACTICE AND PROCEDURE – summary dismissal- whether issue estoppel – whether factual basis of plaintiff’s claims in these proceedings have already been determined adversely to the plaintiff in Federal Court proceedings- whether amendment to the summons can overcome the plaintiff’s arguments that are subject to issue estoppel- whether plaintiff has an arguable case concerning breaches of the UTS Student Rules

CRIMINAL LAW – Application under s 78 of the Crimes (Appeal and Review) Act 2001 – Whether doubt or question as to conviction – Applicant convicted of attempting to choke within intent to commit an indictable offence, namely indecent assault – Where applicant sought leave to appeal against his conviction from the Court of Criminal Appeal – Where leave was refused – Grounds relied upon in support of the present application determined by Court of Criminal Appeal – Where the applicant pointed to no further factors bearing upon those grounds – Application dismissed

REFERRALS – case management – motion seeking preservation of evidence – motion seeking stay of order placing applicant on Child Protection Register – Supreme Court Act 1970 (NSW) s 69C – whether any evidence of intention to erase evidence from seized devices

COSTS – plaintiff obtained judgment for US$285,000 plus interest against one of four defendants – all defendants located in Isle of Man – proceedings were appropriately commenced in Supreme Court – whether proceedings warranted continuation in Supreme Court after jurisdiction was confirmed – whether settlement offer to all defendants affected discretion as to costs

CRIMINAL LAW - appeal against conviction - robbery in company with wounding - numerous inconsistencies in complainant’s evidence - whether open to jury to accept complainant's evidence and be satisfied beyond reasonable doubt of accused's guilt EVIDENCE - relevance - photographic evidence of complainant's injuries tendered - accused accepted he has assaulted complainant in circumstances going beyond self-defence - whether error by primary judge in admitting photographs into evidence

EVIDENCE – maker unavailable because deceased – whether circumstance that statement made to police in which maker acknowledged that he would be liable to prosecution if any part untrue fulfils requirement in s 65(2)(c) – insufficient – possibility that maker not disinterested in police investigation – Crown’s onus not discharged EVIDENCE – tendency evidence that deceased did not, on prior occasions, inject himself but rather arranged for others to inject him with intravenous drugs – significant probative value in case where manslaughter by unlawful and dangerous act alleged – evidence allowed EVIDENCE – business record – clinical note made of consultation with deceased – whether ought be admitted – whether maker unavailable – Crown’s obligation of fairness to the accused – ruling deferred pending return of subpoena CRIME – manslaughter – criminal negligence – authorities considered – whether evidence to support proposition that accused had secluded the deceased when he was in a compromised state – rejection of deceased witness’ statement led to Crown’s abandonment of this basis of manslaughter

ORDERS – form of orders for statutory mandamus – desirable to include particularity to avoid uncertainty – form of orders proposed by plaintiff in reply adopted

EVIDENCE – competence to give evidence – s 13 Evidence Act 1995 (NSW) - young child – aged 11 at the time of trial and nine when his recorded interviews made – enquiries made of trial to assess competence

CRIMINAL LAW – evidence - admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – statement made after conclusion of recorded interview – statement made in response to accused being charged with offence – whether statement made in the course of official questioning – whether reasonable excuse for statement not being subsequently recorded EVIDENCE – admissions – criminal proceedings – serious indictable offences – whether statutory provision for admissibility complied with - whether admissions liable to be excluded

RESTRICTED PREMISES – application for declaration of premises under the Restricted Premises Act – reputed criminals attending or likely to attend premises – absence of genuine occupant – reputed criminal declaration

COSTS – Where plaintiff brought proceedings against the defendant – Order made for the summary dismissal of those proceedings – Where plaintiff then sought that such order be set aside – That application also dismissed by a different judge – Determination of the question of costs of the second proceedings – Where plaintiff sought that the judge dismissing those proceedings recuse himself from determining the question of costs on the grounds of actual bias – Where plaintiff asserted various errors in the determination of those proceedings - No basis for recusal – Assertions of error appropriately determined on appeal – Plaintiff entirely unsuccessful in second proceedings – No basis for altering the general rule that the defendant as the successful party should have an order for costs in its favour

CRIMINAL LAW – evidence - voir dire – admissibility of evidence – risk of jury misusing evidence outweighs probative value

EVIDENCE – Evidence on Commission Act 1995 – ex parte application – r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) – order seeking to revoke earlier orders – orders sought made

MORTGAGES – mortgages and charges generally – costs and other matters – where mortgaged property sold – where mortgagee paid debt and interest due – whether mortgagee entitled to retain surplus to meet costs of pending proceedings brought by mortgagor CIVIL PROCEDURE – pleadings – amendment – whether plaintiffs should have leave to amend their defence to cross-claim – whether there should be a separate determination of liability

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – s 1337H Corporations Act 2001 (Cth) – multiple class actions – where four class actions arising from same facts pending in Federal Court – whether these proceedings should be transferred to the Federal Court – whether court to make an anti-suit injunction

EVIDENCE – exclusion of evidence – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – where the Crown seeks to tender evidence of phone records of calls to the deceased – where the Crown cannot assert that the call records demonstrate that threats came from the accused or by someone associated with the accused – where the Crown seeks to rely on the call records to rebut the inference that threats to the deceased were made by others – where there is a danger that the jury may give too much weight to the evidence CRIMINAL PROCEDURE – Criminal Procedure Act 1986 (NSW), s 130A – whether it would not be in the interests of justice for the previous order to be binding – where evidence admitted in the first trial – where evidence is unfairly prejudicial to the accused – where new circumstances – where accused unrepresented

HIGH RISK OFFENDER – serious sex offender – preliminary hearing – numerous prior convictions for acts of indecency in public – one prior serious sex offence – history of breaching parole and reporting obligations – alcohol and other risk factors – assessment of high risk of reoffending – orders made

CORPORATIONS – winding up – application for order that winding up of St Gregory’s Armenian School Inc be terminated under s 482 of the Corporations Act 2001 (Cth) – whether applicants have standing to make application – whether order should be made in circumstances where winding up is virtually complete – no realistic explanation as to how the Association could recommence operation – not appropriate to make order sought

TORTS – negligence – appellant suffered injury leaping from moving vehicle – whether driver owes duty of care to prevent passenger from harming himself or herself – whether appellant acted reasonably when confronted with emergency – whether injuries were likely to have been less severe had the speed of the vehicle reduced – no error on part of primary judge EVIDENCE – rule in Jones v Dunkel – whether primary judge erred in failing to draw adverse inference from respondent’s failure to give evidence

CRIME – sentence – multiple offences of aggravated breaking, entering and stealing – consideration of applicant’s subjective case – whether sentencing judge mistook the facts as to family hardship – whether other findings as to subjective case were reflected in the sentence imposed – consideration of parity with co-offenders

CRIMINAL LAW – appeal against sentence – robbery while armed with a dangerous weapon – assault with intent to rob while armed with a dangerous weapon – possess unauthorised pistol taken into account on a Form 1 – whether sentence manifestly excessive – whether starting points for each offence too high – whether sentences consistent with comparable cases – where offender received 45 percent discount – where no error demonstrated – leave to appeal granted but appeal dismissed

CORPORATIONS – winding up – application for directions – where liquidators are not funded to bring enforcement proceedings in respect of a further levy – whether the issue of a further levy is of advantage to the liquidation – whether direction should be made that liquidators are justified in issuing a further levy to shareholders – whether direction should be made that liquidators are justified in entering into a funding agreement – whether leave be granted to the liquidators to appoint themselves as voluntary administrators of the company

CIVIL PROCEDURE – application for leave to rely on expert reports and affidavits served out of time – whether in interests of justice to grant leave – where hearing date is upcoming – impractical for defendant to deal with some of the reports in that time – whether hearing date should be vacated – where plaintiff had advance notice of necessity of expert evidence – no satisfactory explanation for delay given – vacation of hearing would create wasted court time – leave partially granted and partially refused.

COSTS – indemnity costs – where defendants were not granted relief sought but had a chance of success – whether indemnity costs will be awarded pursuant to s 98 of the Civil Procedure Act 2005 (NSW) – costs forthwith – where defendants’ application was entirely separate in the early stage of proceedings – where defendants’ application failed comprehensively – whether costs should be payable forthwith.

LAND LAW – mortgages – possession on default – pleading – whether any defence is disclosed – unverified pleadings – defence struck out – leave to re-plead

CRIMINAL LAW – evidence – admissions – Criminal Procedure Act 1986 (NSW) s 281 - unrecorded statements made to police – whether accused was suspected or could reasonably have been suspected of committing an offence at time of admissions – whether there was a reasonable excuse for failure to make tape recordings of admissions EVIDENCE – admissions – criminal proceedings – serious indictable offences – whether statutory provision for admissibility complied with - whether admissions liable to be excluded

ADMINISTRATIVE LAW – practice and procedure - stay of administrative action pending judicial review - source of power - discretionary considerations

LAND LAW – Co-ownership – Statutory trust for sale

CRIMINAL LAW – Crown appeal against sentence – asserted manifest inadequacy and other asserted errors – underlying issue – evidence of respondent on sentence inconsistent with pleas of guilty– requisite mental element with regard to quantity in state drug offences – pleas of guilty rejected – convictions and sentences imposed upon the respondent quashed – remitted to District Court for trial

CRIMINAL LAW - appeal against sentence - break and enter with intent to commit serious indictable offence - break and enter and commit serious indictable offence - guilty pleas - whether the sentencing judge erred in his assessment of objective seriousness of the property offences - individually assessed each offence at the low level - Crown conceded error - each offence being treated as aggravating by reference to s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) - merely a degree of planning - significant value - financial gain - offending occurred on conditional liberty - significantly aggravating - no special circumstances - House v The King (1936) 55 CLR 499 error - sentencing discretion miscarried - re-exercise - lesser sentence warranted - proportionality - aggregate sentence - totality - partial accumulation - licence disqualification - reduced period CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in applying Frigiani v R [2007] NSWCCA 81 to Sequence 6 - unnecessary to consider - not satisfied sentencing judge misapplied the principle CRIMINAL LAW - appeal against sentence - whether the sentence imposed is manifestly excessive - ‘just’ below mid-range - single episode - unnecessary to consider

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act – Interim Supervision Order – analysis of facts alleged – order granted

SUCCESSION – Wills, probate and administration – Wills made in contemplation of marriage – Whether deceased’s will revoked by second marriage – No express terms referring to marriage between the deceased and his widow – Where deceased expressed a desire to exclude his first wife and an estranged stepchild of his first marriage – Whether the deceased, at the time of making his will, had in mind again taking on a legally recognised status of marriage – No contemplation of second marriage – Deceased’s estate to be administered as intestate SUCCESSION – Wills, probate and administration – Intestacy – Spousal right of election to estate property – Whether an extension of time should be granted – Whether sufficient cause – Whether appreciation in the value of estate property prejudiced other beneficiaries if election made – Extension granted on terms SUCCESSION – Family provision and administration – Failure by testator to make sufficient provision for the applicant – Stepson raised by the deceased as his own child – No contest as to entitlement to provision – Designation of notional estate despite ample actual estate – Whether superannuation entitlement should be designated as notional estate to satisfy family provision relief – Special circumstances required – Where designation would facilitate administration of the deceased’s estate – Notional estate designated – Family provision order made.

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – application to quash adjudicator’s determination – whether adjudicator imposed an onus of proof on plaintiff inconsistent with his statutory obligation to come to his own view on the material – whether adjudicator’s determination regarding lineal metreage unreasonable – necessary to consider adjudicator’s reasoning in light of statutory requirement to determine often difficult questions within tight timeframe – necessary to have regard to the statutory scheme which renders determination final as to payment claims but otherwise preserves all rights – impermissible to conduct merits inquiry under guise of jurisdictional reasonableness – fair reading of the adjudicator’s reasons in context demonstrates no error with regards to onus – not shown that determination was unreasonable to the extent of invalidation – summons dismissed.

CRIMINAL PROCEEDINGS – subpoena – issued by accused to third party – widely drafted – accused failed to specify forensic purpose of documents sought – subpoena set aside by consent – third party seeks costs of setting aside and complying with subpoena – power of Supreme Court in proceedings on indictment to order costs against accused in relation to subpoena – whether application to set aside a subpoena was a “civil proceeding” – whether inherent powers of Court enable costs order to be made even if Supreme Court rules do not provide for it – UCPR 34.11 – whether “other relief” includes costs – Held no power to award costs of application to set subpoena aside – assessment of costs of compliance – order for payment made with interest – order stayed until conclusion of trial

PROCEDURE – pupil sexually assaulted at school - order seeking to strike out paragraphs contained within plaintiff’s further amended statement of claim – whether relevant paragraphs are too wide and embarrassing- relevant offending paragraphs to be struck out and repleaded in narrower form

PRACTICE AND PROCEDURE – seeking order for examination of the plaintiff - ill health and undergoing treatment – whether an order should be made to enable examination of the plaintiff at his bedside - no evidence of diagnosis, prognosis or - insufficient information to make order

COSTS – party/party – bases of quantification – indemnity costs – proceedings by employer for indemnity for workers compensation benefits paid – judgment in related proceedings finding negligence of defendant causing personal injury to worker – Calderbank offer made by plaintiff – where offer open for 5 weeks – where offer involved elements of compromise – where offer rejected by defendant – whether rejection unreasonable – costs awarded on indemnity basis from date of offer

ASSOCIATIONS AND CLUBS - constitution – where constitution provides that disputes are to be referred to arbitration – whether matter raised by member was a dispute within the meaning of the constitution – proper construction of the constitution

CORPORATIONS – external administration – interaction between priority of distribution of assets in liquidation under s 556 of the Corporations Act 2001 (Cth) and amount protected under s 29 of the Education Services for Overseas Students Act 2000 (Cth) – where company has ceased to be a registered provider – whether s 29 of the Education Services for Overseas Students Act entitles the TPS Director to priority over the company’s other creditors in relation to protected amount – whether deposit amount is subject to a constructive trust for the benefit of the TPS Director.

CRIME - SENTENCE - murder - further charges on a 166 certificate - plea of guilty - domestic violence - offender married to but estranged from victim - interim apprehended violence order in place - offender on bail for earlier charges - planned and carefully executed offence in the home - use of a rifle - four lethal wounds inflicted - full admissions to police - question of whether a life sentence required - concession by the Crown - question of mental impairment - depression - alcohol related brain damage - older offender - need for general deterrence - question of community protection

EXPERT REPORT – assessment of reasonableness of flood engineer’s belief about capacity of dam – reliance on events that post-date flood event – opinion with absence of reasoning – no question of principle

COSTS – party/party – bases of quantification – indemnity costs – judgment for plaintiff in proceedings for negligence causing personal injury – offer of compromise and Calderbank offer separately made by plaintiff – where offers rejected by defendant – where damages awarded by judgment greater than plaintiff’s offer of compromise and Calderbank offer – where plaintiff prima facie entitled to indemnity costs unless Court otherwise orders – Uniform Civil Procedure Rules 2005 (NSW), r 42.14 – whether significant change in plaintiff’s case between date of offer and date of trial – where expert medical reports not served on defendant at time of offer – where plaintiff’s statement and other medical reports raising same evidentiary issues nevertheless served on defendant by the time of offer – costs awarded on indemnity basis from date of offer

CRIMINAL LAW – costs in criminal cases – application to award certificate under the Costs in Criminal Cases Act 1967 (NSW) – whether institution of proceedings for murder by the hypothetical prosecutor unreasonable with hindsight – certificate granted

CONTRACTS – parties – the Crown – purported training contract between Navy and enlisted serviceman – prerogative of command of armed forces – Commonwealth Constitution, s 68 – “command” – whether contract an impermissible fetter upon prerogative of command – contract void – claim for breach dismissed CONTRACTS – formation – consideration – absence of consideration – enlistment in armed forces – purported contract between Navy and enlisted serviceman – where training to be offered and undertaken pursuant to purported “training contract” – whether no effective consideration due to serviceman’s terms of service of enlistment – no effective consideration ESTOPPEL – estoppel by representation – against public authorities – the Commonwealth – whether estoppel can bind Commonwealth to a contract to fetter exercise of prerogative of military command – no estoppel

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Deceased made statements going to testamentary intention which provided reasons for the lack of provision for the Plaintiff – Reasonably large estate in value – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

TRADE AND COMMERCE – contract for sale of a pharmacy – whether purchaser entitled to rescind – whether purchaser discharged obligation to do all things and make all applications and returns necessary to obtain approval under s 90 of the National Health Act 1953 (Cth) – whether purchaser used best endeavours to ensure that application was determined expeditiously – whether vendor entitled to forfeit deposit TRADE AND COMMERCE – misleading and deceptive conduct – whether vendor made positive representations that he was not aware of an application for a second pharmacy in Coonamble – whether vendor remained silent as to his knowledge