Cases and authorities

CORPORATIONS — Winding up — Conduct of liquidation — Meeting of creditors – Application for declaration that secured creditor did not surrender security by voting its whole debt – whether debt voted through inadvertence.

MEDICAL NEGLIGENCE – birth defect – proceedings commenced by an infant through a Tutor – matter resolved – approval of the Court – no issue of principle – consent orders made.

CRIMINAL LAW – murder – special hearing – judge alone – tendency evidence – victim’s tendency established- accused’s tendency established – tendency evidence admissible

ADMINISTRATIVE LAW – Judicial Review – Decision of medical review panel – Whether panel reached a conclusion in the absence of evidence – Whether panel engaged in a proper exercise of clinical judgment – Error established – Matter remitted to a differently constituted panel ADMINISTRATIVE LAW – Practice and procedure - Judicial Review – Decision of medical review panel – Whether panel’s reasons adequate ADMINISTRATIVE LAW – Judicial review – Practice and procedure – Whether court should refuse relief in the exercise of discretion – Whether the result of a further medical assessment following the remittal of the matter would inevitably be the same as that reached by the review panel – Where one of the errors found was that the panel failed to exercise its proper clinical judgment – Not possible to reach a conclusion that the result of a further assessment would be the same – Not an appropriate case in which to exercise the discretion to refuse to grant relief

SUCCESSION – family provision and maintenance – where deceased terminally ill and living in a hotel room – where respondent visited the deceased to provide her with care in the months preceding her death occasionally staying overnight – whether respondent and deceased were “living together” in a “close personal relationship” at the time of her death EVIDENCE – expert evidence – where primary judge made findings as to mental disability suffered by respondent – where no expert evidence as to existence of any such disability and how it might affect respondent’s behaviour or evidence – whether findings, including as to credibility, available

CRIMINAL LAW – appeal against sentence – assault with intent to rob whilst armed with an offensive weapon – robbery whilst armed with a dangerous weapon – discharge firearm with intent to cause grievous bodily harm – whether aggregate sentence failed to properly apply principle of totality – whether sentencing judge failed to provide adequate reasons for aggregate sentence imposed – whether sentencing judge failed to sentence in accordance with the principle of instinctive synthesis – whether sentence was “crushing – whether sentence was manifestly excessive

ADMINISTRATIVE LAW – search warrant – where search warrant has been quashed – whether orders should be made in relation to seized property- parties ordered to return property – any further conduct left to parties

TRUSTS AND TRUSTEES – equitable interests in trust property – ranking of priorities – claims of equitable interest as charge pursuant to loan agreements – claim of equitable interest by charge or constructive trust or subrogation – whether stamping pursuant to (NSW) Duties Act 1997, s 211, operates retrospectively.

CRIMINAL LAW – murder – special hearing – judge alone – evidence – s 78 of Evidence Act 1995 (NSW) – lay opinion evidence

EQUITY – Trusts and trustees – Court’s supervision of - Appointment and removal of trustees – corporate trustee of superannuation fund deregistered after death of its principal beneficiary – compliance with the Superannuation Industry (Supervision) Act 1993 (Cth) – whether two new trustees should be appointed and vesting orders made under Trustee Act 1925, ss 70 and 71 – whether deregistered corporate trustee should be re-registered under Corporations Act 2001 (Cth), s 601AH.

SENTENCE – manslaughter – offender found not guilty of murder but guilty of manslaughter after trial by jury – need for findings of fact to be consistent with the verdict of jury – manslaughter by excessive self-defence – intention to inflict grievous bodily harm at the time of fatal act – pre-existing intention to harm the deceased – otherwise unblemished character of offender – psychological problems arising from child sexual assault – instinctive synthesis of countervailing factors – sentence imposed

SUCCESSION — Wills, probate and administration — Probate caveats — Where plaintiff filed notice of intended application for probate and defendant filed successive caveats requiring notice of any grant of probate — Whether order should be made removing caveats — Whether there is doubt as to whether the grant of probate should be made.

PARTNERSHIPS AND JOINT VENTURES — Receivership — Application for judicial advice by receiver of partnership — Where partner disputed validity of partnership debt to bank — Where related entities of one partner transferred money into partnership account to service debt to bank — Whether receiver justified in treating transfers as loans to partnership and repaying them.

CRIMINAL LAW – murder – accused previously found unfit to stand trial – whether with treatment he has become fit

COSTS — Security for costs — where Plaintiff resident outside jurisdiction – where litigation concerns parties’ rights to Plaintiff’s only assets in jurisdiction – where evidence of costs likely to be incurred inadequate – where evidence does not distinguish between costs of Defence and costs of Cross-Claim – whether order should be made for security for costs – quantum and form of order.

CIVIL PROCEDURE – Referral to referee – Adoption of referee report – Whether report should be rejected for actual or apprehended bias – Whether referee failed to comply with rules of natural justice

EVIDENCE – inferences – findings of serious wrongdoing in civil cases – where property destroyed by fire intentionally lit – whether objective evidence justified inference as to identity of person who lit fire and as to insured having consented to that person’s doing so – use of phone records to establish common user of phones – use of consciousness of guilt finding INSURANCE – property insurance – fire – exclusions – intentional fire by someone acting with insured’s consent – intentional fire by person who enters with insured’s consent

APPEALS – security for costs – whether special circumstances – where appellant impecunious – where order for security for costs would stifle appeal

CRIMINAL LAW – appeal – whether offending on parole erroneously taken into account on assessment of objective seriousness – HELD – no error demonstrated – sentencing judge adopted sequence of relevant matters submitted by parties – finding of objective seriousness preceded mention of fact that offence committed while applicant on conditional liberty – need to read reasons fairly and as a whole

CRIMINAL LAW – sentence appeal – child sexual offences – aggravated indecent assault – two counts – objective seriousness – guilty plea – whether sentence reflects objective seriousness and discount for guilty plea – internal inconsistency in sentencing reasons – sentence manifestly excessive

CRIMINAL LAW – sentence – possession of firearm – matters relevant to assessment of objective criminality – whether nature of the weapon relevant – loaded automatic pistol – relevance of finding that applicant in “mere possession” of pistol – where sentencing Judge rejects prosecution submission that gun possessed in the course of drug dealing – pervert the course of justice – where applicant attempts to have inmate take responsibility for the weapon – whether Judge misused the applicant’s criminal history – whether Judge erred in failing to find special circumstances – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL – sexual offences – Crown appeal against permanent stay – statutory interpretation - 73(3)(c) Crimes Act 1900 – meaning of “established personal relationship” – meaning of “in connection with” - whether complainant was under the respondent’s “special care”

CORPORATIONS – winding up – (CTH) Corporations Act 2001, s 461 – application by shareholders for winding up on just and equitable ground – where company is operating prosperously – where relationship between shareholders does not seriously impact functionality of company – where basis on which plaintiffs purchased share capital has not been falsified – held, winding up order declined.

EVIDENCE – admissibility – criminal proceedings – two murders – hearsay – maker unavailable – representations to a friend – letter written by deceased to be opened if her death is deemed unnatural – representations by deceased about relationship with accused – representations by deceased implicating accused in other murder and her own possible future murder – some assertions based upon admissions – unfair prejudice – some statements admissible under s 66A Evidence Act 1995 (NSW) – relevance to one murder but not other – letter excluded in entirety

INDUSTRIAL LAW – declaratory relief – Clause 17 of the Health Employees’ Conditions of Employment (State) Award – long service leave – whether employees are entitled to have past periods of continuous casual service taken into account when calculating accrued long service leave under Clause 17 – clause ambiguous – referral to the Industrial Relations Commission – how construction of the Award must be approached – no evidence led about agreement which Clause 17 of Conditions Award encapsulates – Jones v Dunkel inferences – statutory framework – history of award regulation of casual employees – casual employees with requisite continuous service acquire rights under the Long Service Leave Act – prior continuous casual service of full time and part time employees to whom Clause 17 applies must be taken into account when entitlements under Clause 17 are calculated – Clause 17 does not apply to casual employees – Union entitled to declaratory relief – parties to confer – proposed orders should be filed

EQUITY – Urgent duty application Friday afternoon by the de facto partner of LS, a person without testamentary capacity, for the making of a statutory will pursuant to division 2 of the Succession Act 2006 (NSW) (“the Act”) – LS on life support, anticipated termination of life support following Monday – Matters to be taken into account by s 19 and s 22 and, in particular, consideration of the notice requirements of s 22(e) of the Act.

BUILDING AND CONSTRUCTION – determination under Building and Construction Industry Security of Payment Act – whether serious question to be tried that adjudicator acted beyond jurisdiction

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 – forensic patient – limiting term due to expire – application for interim extension order – interim orders not opposed – interim orders made CIVIL PROCEDURE – Court Suppression and Non-publication Orders Act 2010 – application by forensic patient for non-publication order – concern for release of medical and personal information – judgment deliberately cast in terms not disclosing such material – adequacy of order restricting access to court file – application refused

ADMINISTRATIVE LAW – jurisdictional error – whether refusal of leave by Full Bench of Industrial Relations Commission against decision of Commissioner affected by jurisdictional error itself involved jurisdictional error ADMINISTRATIVE LAW – inference drawn from reasons of Commissioner that regulatory context not taken into account, notwithstanding that it was, as a matter of necessary implication, a mandatory relevant consideration – jurisdictional error established INDUSTRIAL LAW – what was required to determine whether dismissal was harsh – whether regulatory context was required to be considered in the context of a correctional services officer who assaulted three separate inmates on three occasions – HELD –seriousness of misconduct was required to be assessed to determine whether dismissal was harsh – assessment of seriousness required consideration of regulatory and policy context PUBLIC LAW – correctional services officers agents of the State when dealing with inmates in custody in gaols – importance of prohibition of use of force by correctional services officers in the context of the State’s responsibilities towards those it deprives of liberty

DEFAMATION – defences – justification – capacity of particulars to prove substantial truth of specific imputations DEFAMATION – defences – contextual truth – whether contextual imputations capable of being conveyed in addition to plaintiff’s imputations – whether matter complained of capable of conveying contextual imputations – undesirability of determining question of capacity to convey in respect of an audio-visual publication where the matter complained of was not tendered at the hearing

Equity – fiduciary relationships – company director – prospective sale of company – where persons claiming to be shareholders had been excluded from management of company and surrendered claims in return for lump sum payment – whether fiduciary duty of disclosure owed Civil Procedure – preliminary discovery – production of documents concerning negotiations leading to acquisition of company – applicants’ entitlement to disclosure – Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1) – whether discovery may be given of documents relating only to quantum

Consumer Law – misleading and deceptive conduct – sale of residential property – purchase in name of wife where husband is property developer and made decision to purchase – representations as to private parking on right of way made by real estate agents and on websites, signs and brochures – claim brought against vendor’s agents – statement of law as a statement of opinion – causation – “no transaction” case – emotional reasons for purchase – loss – expert valuation evidence – direct comparison analysis in a thin and high value market – estimate of damages – contributory negligence – purchaser’s failure to take reasonable care in conducting enquiries – disclaimers in special conditions to contract for sale of property – right of way reported to purchaser prior to purchase

SENTENCING – appeal against sentence – co-offenders – where co-offenders receive identical sentences – where co-offenders have different roles and involvement in conspiracy to import prohibited substance – applicant in superior position in enterprise – co-offender involved in importation of greater quantity – factors balance – whether applicant had justifiable sense of grievance in being sentenced identically to co-offender – relevance of co-offender’s separate appeal raising parity ground

EVIDENCE — Discretions — Exclusion of evidence — Improperly or illegally obtained evidence under Evidence Act 1995 (NSW), s 138 – Where evidence obtained in circumstances of a trespass to land and various breaches of the Surveillance Devices Act 2007 (NSW) – Whether primary judge erred in excluding seven individual pieces of surveillance footage by not considering each item individually by reference to considerations in s 138(3) – Whether primary judge erred in assessing the gravity of the contravention – Whether primary judge erred in assessing the difficulty of obtaining the evidence without the contravention – Whether primary erred in excluding search warrant evidence – Whether primary judge erred in excluding evidence of certain alleged admissions

CROWN APPEAL – manufacture a large commercial quantity of methylamphetamine and possession of unauthorised pistols – mathematical error in calculation of sentence – whether sentence actually passed manifestly inadequate – whether lack of consistency in sentences imposed for possession of unauthorised pistols – whether sentence properly accumulated to comply with requirements of totality – manifest inadequacy established – whether residual discretion should apply – Crown appeal allowed – need to re-sentence.

SENTENCE APPEAL – exposing child to process of cultivation of a prohibited plant namely cannabis – whether it was open to the sentencing judge to find that the applicant was a principal in the offending – discussion of relevant evidence – whether applicant had a justifiable sense of grievance as a result of the sentence imposed on the co-offender – sentence appeal dismissed.

SENTENCE APPEAL – two counts of deemed supply of heroin and methylamphetamine – matters on a Form 1 including deal with proceeds of crime of $41,200 – ex tempore judgment by sentencing judge – modest custodial sentence (head sentence of 2 years and 3 months with non-parole period of 1 year) – applicant suffering from kidney disease and on wait list for kidney transplant – requirement for kidney dialysis on a daily basis – whether sentencing judge properly took into account applicant’s kidney condition – whether sentencing judge treated applicant’s criminal record as an aggravating factor – whether sentencing judge entitled to treat as an aggravating factor that drugs and money were found in the applicant’s house – whether sentence was manifestly excessive – leave to appeal against sentence granted but appeal dismissed.

CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors – where inappropriate for issues in proceedings to be determined by separate courts - where issues in dispute include whether there was a partnership or a joint venture and whether or not there was a de facto relationship between the alleged joint-venture parties – strong inter-relationship of issues. CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts –where Supreme Court and Family Court of Australia have jurisdiction to determine issues in proceedings – consideration of jurisdiction conferred as described in Jensen v Pearce [2013] NSWCA 247 – whether proceedings should be transferred to Family Court of Australia pursuant to Jurisdiction of Courts (Cross-vesting) Act, s 5(1)(b).

EQUITY – questions for separate determination pursuant to UCPR 28.2 – whether, on the proper construction of the Will, the Plaintiff’s appointment as “Literary Executor” in clause 7.3 of the Will was an appointment as an Executor within the meaning of s 41 of the Probate and Administration Act 1898 (NSW) – and whether, if so, the property the subject of the Plaintiff’s appointment as an Executor includes the copyright and other intellectual property in the deceased’s works;

CRIMINAL LAW – procedure – opening addresses – opening address by defence – s 159 Criminal Procedure Act 1986 – whether address complied with section 159(2) – whether jury should be discharged

COSTS – application for costs to be paid out of trust property – where sole person beneficially entitled to the trust fund is impecunious – where that person should bear the cost of legal fees incurred – where that person consents to the application – held, portion of plaintiff’s costs to be paid from trust fund.

CIVIL PROCEDURE – discovery – application by plaintiff – pleadings not closed – discovery order made COSTS – costs follow the event – overriding purpose

SENTENCING – appeal against sentence – three drug supply offences – where sentencing judge applied the Clark “principle” that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances – whether Clark “principle” incompatible with judicial sentencing discretion – consideration of general sentencing principles – Clark “principle” prescriptive not descriptive – no statutory root – judicially created constraint on the sentencing discretion – Clark “principle” inconsistent with sentencing discretion and should no longer be applied SENTENCING – appeal against sentence – error established in judge applying Clark “principle” – re-exercise of sentencing discretion – no lesser sentence warranted in law SENTENCING – general principles – drug supply cases – significance of deterrence and protection of the community – attention to legislative guideposts of high maximum penalties and standard non-parole periods – cases of drug dealing to a substantial degree may ordinarily require custodial sentences – role of s 5(1) Crimes (Sentencing Procedure) Act 1999 SENTENCING – offender a solicitor – whether sentencing judge failed to take into account loss of ability to practise law – prominent feature of case – whilst not explicitly referred to as extra-curial punishment, no doubt sentencing judge had regard to matter

NON-PUBLICATION ORDER – order sought under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) – Crown not on notice of application – interim order made to protect position of Crown and to prevent publication of fact of freezing orders against both accused and conviction of the accused Mr Agius

EVIDENCE – objection to trust deed on basis that could be used to impugn credibility of the accused or as a deliberate lie amounting to a consciousness of guilt – primary beneficiary said to be the International Red Cross – accused said in his voluntary disclosure statement that trust intended to benefit his family – Crown confirmed no such use would be made of the trust deed in its own case – HELD – trust deed admissible – probative value not outweighed by any prejudicial effect

PRACTICE AND PROCEDURE - application by Plaintiff to amend pleadings to claim exemplary damages - application made at conclusion of evidence and before closing addresses at substantive hearing - previous application to amend to claim exemplary damages refused - application refused

COSTS – security for costs – whether the plaintiff is ordinarily resident outside Australia – factors relevant to the exercise of discretion to order a security for costs order – whether the plaintiff is impecunious – whether the plaintiff’s circumstances would stultify proceedings – whether the proceedings was a matter of public importance – application dismissed

UNFAIR CONTRACT – ex parte proceedings – implications of settlement with second defendant – costs – indemnity basis – gross sum order – directions for final orders

APPEALS – application for leave to appeal against decision of NCAT Appeal Panel on a question of law – no error of law established BUILDING CLAIMS – claims by Owners Corporation and individual lot owners in respect of common property – whether Appeal Panel erred in assuming separate claims were maintainable – whether Appeal Panel erred in declining to consider Scott Schedule prepared after consent orders were entered for purpose of determining whether claim exceeded Tribunal’s jurisdictional limit