Cases and authorities

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

CIVIL PROCEDURE – notice of motion – construction of will – scope of defined terms in will – UCPR r 6.24 – joinder of parties – UCPR r 7.6 – whether interested parties beneficiaries as per defined terms in will – large number of actual and potential beneficiaries – order for appointment of representatives for three “classes” of beneficiaries – UCPR r 7.12 – beneficiaries and claimants – order allowing plaintiff to join third defendant to proceedings without his consent

EVIDENCE – discretions – exclusion of evidence – where potential witness said to have been told by accused that accused paid money to ex-girlfriend “because she knew too much” – where Crown submits that conversation could give rise to inference that accused had disclosed to ex-girlfriend of his involvement in death of victim – whether link between conversation and the murder could be inferred – little or nothing to link conversation to murder – whether danger of jury misusing evidence outweighs probative value – evidence excluded

POSSESSION – equitable relief sought against mortgagee – pleading required; INTERLOCUTORY RELIEF – mortgagee sale – equitable relief sought by mortgagee after sale – request for payment into court of proceeds of sale – no evidence of inability to meed any verdict or dissipation of funds – motion dismissed.

LAND LAW — Community title — Community scheme — Termination of scheme — Whether all interested parties have “made an application” where only some are plaintiffs and others have consented — Community Land Development Act 1989, s 70(1)(c)

CORPORATIONS – where leave to file amended statement of claim not granted under s 440D of the Corporations Act 2001 (Cth) – whether Court, in giving effect to decision not to grant such leave, will permit statement of claim to be amended in part over opposition of other parties COSTS – where the outcome of the ultimate proceedings will determine the utility of the plaintiff bringing an interlocutory application – whether Court will reduce the costs awarded to a party to reflect the manner in which the proceedings have been conducted

CRIMINAL PROCEDURE ­– no case to answer application ­– specially aggravated kidnapping – whether accused had intention to kidnap ­– whether victim was dead or alive – application refused

CRIME – procedure – trial for murder – application by accused for an order that he be tried by a judge alone – where self-defence and defences of mental illness and substantial impairment to be raised – complexity of expert evidence and legal issues – difficulty of distinguishing between chronic psychotic disorder and drug-induced psychosis – whether issues raised by defences more appropriately determined by a judge – consideration of relevance of requirement for a judge to give reasons for verdict – prospect of distressing evidence and evidence of unlawful conduct on the part of the accused – whether likely to excite emotional response in jury

COSTS - offer of compromise - whether unreasonable to reject “walk-away” offer - effect of general order as to costs of proceedings upon interlocutory costs orders.

CRIMINAL PROCEDURE – restricted premises – reasonable suspicion that premises are being used for illegal purposes including sale and supply of alcohol when not licensed – possession of guns – managed by persons with a criminal record and reputed criminals resorting to premises – evidence of inter-gang violence related to premises – declaration that premises restricted under the Restricted Premises Act 1943

CRIME – accused charged with murder – objection taken to admissibility of admissions made by accused in diary notes and video recordings – reliability of admissions – mental illness – capacity of jury to determine reliability of admissions that may be delusional - s 90 Evidence Act – question of unfair prejudice

HIGH RISK OFFENDERS – Interim Supervisions Orders – extension required and granted.

EVIDENCE – relevance – discretions – exclusion of evidence – criminal proceedings – listening device material

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CIVIL PROCEDURE – application for the appointment of pro bono counsel – no issue of principle

APPEAL - numerous grounds of appeal - primary grounds successful and retrial ordered - consideration of circumstances in which appellate court should address non-dispositive grounds of appeal EVIDENCE - documents - business records exception to hearsay rule - inferences available from production of documents pursuant to subpoena - inferences available from form and context of documents - Evidence Act 1995 (NSW) ss 47, 48, 51, 69, 183 - National Australia Bank Ltd v Rusu (1997) 47 NSWLR 309; [1999] NSWSC 539 considered - discretionary rejection of documents pursuant to Evidence Act s 135 - requirement to assess probative value as well as risk of unfair prejudice - requirement to determine whether former was substantially outweighed by latter - decision of primary judge to reject tender of documents produced on subpoena set aside

CRIME – appeal against sentence – break and enter into dwelling in company - whether sentencing judge erred in assessment of moral culpability – whether sentencing judge erred in failing to make a finding as to effect of mental condition on weight given to general deterrence – appeal allowed

AGENCY – powers of attorney – revocation – at common law – under statute – where power of attorney is expressed to be irrevocable and was given for valuable consideration – whether power of attorney is irrevocable – where director and attorney appointed to act for him by irrevocable power of attorney both appointed solicitors to act for company – where director’s appointment of solicitors would frustrate the purpose of the power of attorney – whether retainer between attorney and his solicitor had been terminated on its terms – whether court would allow two solicitors to be on the record as acting for one party

CORPORATIONS – external administration – voluntary administration – second meeting –application to adjourn hearing of winding up application where company is in administration – whether the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up – held, adjournment refused and company wound up.

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

PROCEDURE – application to have the matter transferred to the Land and Environment Court – granted INJUNCTION – whether injunction should be dissolved – dissolution refused LOCAL GOVERNMENT – power of Minister to suspend council – proper construction of ss 438I and 438K of Local Government Act

COSTS – departing from general rule – defendants unreasonably failed to accept Calderbank offer – indemnity costs ordered from date of offer – plaintiff succeeded on some issues and failed on others – appropriate to order that defendants pay only half of plaintiff’s costs for period prior to offer

PROCEDURE – discovery and interrogatories – Notices to Produce – alleged non-compliance – party asserting non-compliance fails to identify documents or types of documents not produced – no non-compliance demonstrated – application dismissed

STATUTORY INTERPRETATION – Election Funding, Expenditure and Disclosures Act 1981 (NSW) – construction of exemption for candidate’s self-funding own election campaign – whether permissible for party which has endorsed candidate to accept candidate’s funds within the exemption or whether such funds are political donation STATUTORY INTERPRETATION – Election Funding, Expenditure and Disclosures Act 1981 (NSW) – whether monies paid by candidates to party account can be recovered by Electoral Commission as a debt due DECLARATORY RELIEF – suitability where claim for debt – wording and breadth of declarations considered

CRIMINAL LAW – sentence following trial - murder - Offender found guilty of murder of his 18-year old wife in 1997 at Mt Warrigal - murder by choking - Offender then buried body in shallow grave near Seven Mile Beach - body located a month later - domestic violence murder - absence of contrition or remorse - relevance of Offender’s recent health issues - approach to sentencing for murder committed in 1997

EVIDENCE – discretions – exclusion of evidence – criminal proceedings – where circumstantial case – where evidence of consciousness of guilt

SUCCESSION – Family provision and maintenance – Eligibility – De facto spouse – Admitted relationship as a couple – Dispute as to whether “living together” – Peripatetic lifestyle of Deceased – Relationship of three years’ standing – Competing claims of Deceased’s children from earlier marriage – Relief granted.

APPEAL AND NEW TRIAL – appeal from decision of Local Court Magistrate under ss 37 and 38 of Associations Incorporations Act 1984 (NSW) – whether Magistrate erred in finding a debt was not incurred following the making of a costs order against the Defendants in a prior trial – proper construction of incurring a debt – whether Magistrate considered whether incurring the debt would give Defendants reasonable grounds to expect that the Association would not be able pay all of its debts as and when they became due – whether Defendants had reasonable cause to expect that the Association would be able to pay debts as and when they became due – appeal dismissed

ENVIRONMENT AND PLANNING – Environment Protection Agency (EPA) issued a clean-up notice to the appellants in respect of a metal recycling site – appellants failed to comply with the notice – EPA then issued a notice to the respondent council to clean up the site – whether any non-compliance by the respondent with the EPA’s notice to it affected the respondent’s right to recover its costs and expenses of the clean-up from the appellants

CRIMINAL LAW – appeal against sentence – aggregate sentence imposed in the Drug Court – aggregate non-parole period significantly greater than 75% of the aggregate head sentence – prosecutor did not seek that outcome, and sentencing judge did not foreshadow it – defence advocate sought a finding of special circumstances, and therefore an aggregate non-parole period that was less than 75% of the aggregate head sentence – whether incumbent upon sentencing judge to find special circumstances before imposing such a sentence – whether sentencing judge gave reasons for imposing such a sentence – whether in all the circumstances the applicant was denied procedural fairness by the imposition of such a sentence – appeal against sentence upheld

CRIME – appeal against sentence – apprehended bias – whether comments and questions by sentencing judge during applicant’s trial, a co-offender’s trial, and sentencing hearings gave rise to reasonable apprehension of bias – application for recusal rejected – whether sentencing judgment should be set aside CRIME – manslaughter – appeal against sentence – diminished responsibility – assessment of culpability – whether findings consistent with jury finding of substantial impairment by abnormality of mind – Crimes Act 1900 (NSW) s 23A

CIVIL LAW – continuing detention order – preliminary hearing – amendments to legislation – nature of test at preliminary hearing – substantial body of evidence – rhubarb and apple crumble – no question of principle.

CRIMINAL LAW – application to discharge jury following conclusion of Crown opening – nature and purpose of Crown opening – significance of complexity of trial and documents tendered during opening

CRIMINAL LAW – murder – accessory after the fact to murder - trial proceedings – admissibility of recorded conversations between principal and alleged accessory – admissibility as evidence of consciousness of guilt – question of relevance – question of probative value and whether probative value is outweighed by prejudice – capacity of directions to cure potential prejudice

BAIL - applicant convicted and sentenced in Local Court - 24 offences of using position to dishonestly gain an advantage or cause a detriment and using position dishonestly to recklessly gain an advantage contrary to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - sentenced to imprisonment for 15 months with an order to be released on recognisance after nine months - all grounds appeal to District Court - appeal bail refused - application for bail in Supreme Court - relevant factors on bail application - likely delay before appeal heard - conditional bail allowed

PRACTICE – expert evidence – admissibility of expert’s report served shortly before trial – requirement to obtain leave – whether exceptional circumstances established

CRIMINAL LAW – Evidence – Re-examination – Scope of re-examination – Whether evidence sought to be adduced by the Crown arose from cross-examination – Whether evidence relevant – Whether evidence should be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice – Evidence admitted

INJUNCTION – ex parte motion – plaintiff sought interlocutory injunction restraining Minister from making decision pursuant to s 438K of Local Government Act 1993 – serious question to be tried – balance of convenience – injunction granted

PROCEEDS OF CRIME – application for restraining orders

EVIDENCE – Evidence on Commission Act 1995 – request from US Court – ex parte application – orders sought made

COSTS – where a party refused a Calderbank offer and then failed to achieve a better result – no presumption in favour of indemnity costs – offer inviting capitulation with no real element of compromise – where parties engaged in interminable disputes as to costs with no regard to proportionality

EVIDENCE – Discovery – Objection to inspection – Privileges – Public interest immunity – Client legal privilege – whether documents discovered in response to stated categories are necessarily relevant to the issues in the proceedings – whether public interest immunity extends to the Cabinet documents for which immunity was claimed – whether client legal privilege established – problems involved in determining whether client legal privilege is established for chains of emails

CORPORATIONS – external administration – voluntary administration – second meeting – administrator’s applications – where administrators anticipate surplus after payment of ordinary creditors –where subordinate claimants have a real interest in the administration - whether subordinate claimants should be entitled to vote – held, they should – modification of operation of Corporations Act, s 439A(3), (4) and 449E(7) in connection with the giving of notice of second meeting to potential subordinate claimants – whether administrators would be justified in rejecting claims not submitted by the time specified in the notice of meeting – held, they would - modification of operation of Corporations Act, s 439(C)(a) so that creditors may not resolve that the company execute a deed of company arrangement which contemplates a distribution to subordinate claimants before other debts unless first approved by ordinary creditors

ADMINISTRATIVE LAW – judicial review - appeal from Local Court - whether Local Court denied the plaintiff procedural fairness – dismissal of Statement of Claim in the absence of the plaintiff.

COSTS – departing from general rule that costs follow the event – plaintiffs partially successful at trial – plaintiffs unsuccessful on a substantial aspect of claim – whether that aspect of claim separable – whether various Calderbank offers were unreasonably rejected – whether plaintiffs obtained orders no less favourable than Offer of Compromise

PROCEDURE – application to re-open and for leave to amend cross-claim to include further particulars alleging breaches of fiduciary duty – where application was made on the eighth day of the trial after evidence closed – whether adequate explanation for delay in seeking the amendment – where cross-defendant would suffer material prejudice by reason of forensic choices and inability to cross-examine witnesses unless recalled – where no offer to pay the costs thrown away by the parties occasioned by the adjournment that would be required to allow the cross-defendant to recall witnesses for cross-examination.