Cases and authorities

SUCCESSION – family provision and maintenance – eligible person – application for provision by nephew – whether factors warranting application – whether nephew established he should be regarded as natural object of testamentary recognition by uncle – community standards – Succession Act 2006 (NSW), s 57(1)(e), s 59(1)(b) SUCCESSION – family provision and maintenance – notional estate order – parties – joinder – Succession Act 2006 (NSW), s 92 – Uniform Civil Procedure Rules 2005 (NSW), r 6.24(1) SUCCESSION – family provision and maintenance – family provision order

LIMITATION OF ACTIONS – defamation – extension of limitation period – application for extension of one year limitation period pursuant to s 56A, Limitation Act 1969 (NSW) – where appellant established not reasonable test – where primary judge granted extension limited to period after the expiry of the limitation period within which it was not reasonable for appellant to have commenced proceedings – whether mandatory to extend limitation period to date appellant filed statement of claim STATUTORY INTERPRETATION – Limitation Act 1969 (NSW), s 14B, s 56A – whether discretion as to date to which limitation period should be extended – nature of the discretion WORDS & PHRASES – “up to”

PROCEDURE – application for a stay of execution of costs order made in appeal against interlocutory decision – where application for stay originally made before judgment given in principal proceedings at first instance – where judgment in principal proceedings adverse to applicant for stay was given before application for stay was heard orally – where applicant for stay now puts application on basis that respondent’s steps to enforce costs order will distract her from pursuing an appeal against the disposal of the principal proceedings – whether in the interests of justice to order a stay.

APPEALS – application for leave – primary judge ordered cross-claimant to provide security for costs – whether any material question of principle – whether question of general importance – whether clear case of injustice – impecunious corporate claimant sought to advance large case including dishonesty against former directors – history of inadequate pleadings – relevance of strength of case – no basis warranting a grant of leave

CORPORATIONS – statutory demand – appeal from a decision refusing to set aside – where application based on argument as to correct construction of deed – necessity to exercise restraint where questions of construction has element of rational controversy – where evidence of statement by third party indicates possibility of defence to debt recovery claim – necessity to exercise restraint in judging ultimate cogency of that evidence – genuine dispute or recent invention – sufficient material to show plausible case – leave to appeal granted

CRIME – bail – detention application – respondent required to show cause – reasonably strong crown case –serious organised criminal activity – charges include supply large commercial quantity cocaine and proceeds of crime in excess of $2 million – lengthy custodial sentence likely if convicted – flight risk – concern of delay – caused not shown – application granted

CRIME – appeal – application for leave to appeal against convictions – convictions based on pleas to sexual assaults committed in 1984 – application to withdraw pleas – refusal to allow applicant to withdraw pleas –whether applicant capable of understanding nature of charges against him at time of pleading – whether applicant intended to enter pleas – whether pleas induced by inappropriate conduct of legal representatives CRIME – appeal – application for leave to appeal against sentence – sexual assaults committed in 1984 – whether sentence manifestly excessive – whether inappropriate reliance on pre-sentence report – sentencing principles for historical offences – need for sentences to reflect objective seriousness of offending

EVIDENCE – objection taken by accused (Mr Agius) to communications between co-accused (Dr Castagna) and his accountants – HELD – evidence admitted as relevant to prove overt acts in performance of conspiracy alleged in the indictment

EVIDENCE – voir dire – objection taken to annual reports and accounts lodged with Companies House (UK) – alleged that provenance not established as documents downloaded from website – alleged unfairness as accused Agius was not shown to have prepared documents – HELD – documents admissible under s 69 of the Evidence Act 1995 (NSW) as business records – no occasion to limit their use under s 136 of Evidence Act

SUPPRESSION ORDER – order sought that articles relating to one or both of the accused be removed from the internet in NSW pending the determination of a criminal trial of the accused for conspiracy to defraud the Commonwealth – order not opposed – HELD – order necessary to protect the administration of justice

CORPORATIONS — Management and administration — Application for leave to manage corporations while disqualified – where Plaintiff is undischarged bankrupt – whether leave should be granted.

CORPORATIONS — Dissolution — Reinstatement – Application for order that Australian Securities and Investments Commission pay Plaintiff money held in respect of deregistered company – whether s 601AH(3)(d) of the Corporations Act 2001 (Cth) empowers Court to order Commission to pay money to Plaintiff without reinstatement of company – whether order should be made for reinstatement of company and payment of money – terms of reinstatement.

CRIMINAL LAW – sentence – accessory after the fact to murder – give possession of a firearm to a person not authorised to possess it – where offender has provided an induced statement and offered to assist in prosecution of co-offenders – where offender shows contrition and remorse – where firearms charge is not objectively serious – where accessory charge is well within lower end of range of objective seriousness – where offender is entitled to a discount for guilty pleas and offer of assistance to authorities

CRIMINAL LAW – sentence appeal – alleged manifest excess – indicative sentence for do act to influence witness excessive – effective accumulation too great having regard to indicative sentences – HELD – manifest excess established – appeal allowed – sentence reduced on re-sentence

CRIME – appeal – application for leave to appeal against conviction – applicant convicted of sexual intercourse with person under 10 years of age – whether trial judge should have given direction as to forensic disadvantage resulting from delay in complaint pursuant to Evidence Act 1995 (NSW), s 165B – whether jury should have been specifically directed to be satisfied beyond reasonable doubt of the truthfulness of the uncorroborated complainant – whether factual errors in trial judge’s directions significant – whether verdict unsafe and unreasonable CRIMINAL PROCEDURE – extension of time to appeal – failure to seek additional directions – leave required under Criminal Appeal Rules, r 4 – leave required under Criminal Appeal Act 1912, s 5(1)

PRACTICE AND PROCEDURE – Judges – Revision and amendment of reasons delivered orally – Where reasons were revised by the trial judge and provided to the parties – Where one party drew the trial judge’s attention to what was said to be a further typographical error in the revised reasons – Where trial judge further revised those reasons by inserting an additional word – Where the word which was inserted was not said by the trial judge when the reasons were delivered orally – Whether the further revision was permissible – Necessity to consider the entirety of the reasons given CRIMINAL LAW – Offences – Appeal – Where respondent was charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Where trial judge made no reference to the relevant statutory provision in her reasons – Whether such matters were considered – Whether the trial judge failed to apply the relevant principles and expose her reasoning process CRIMINAL LAW – Offences – Appeal – Where respondent charged with having sexual intercourse without consent – Where respondent was tried before a judge alone sitting without a jury – Where relevant statutory provisions required the trial judge to have regard, when considering the respondent’s knowledge about consent, to steps taken by the respondent to ascertain whether the complainant consented – Whether the subjective perceptions of an accused can amount to “steps” for the purposes of that provision CRIMINAL LAW – Appeal – Where error made out – Whether an order should be made that the respondent be tried for a third time – Consideration of factors to be taken into account in determining whether the interests of justice required an order that there be a further trial – Where the circumstances leading to this appeal and a previous appeal were not the fault of the respondent or those acting for him – Where any re-trial would take place more than 5 years after the event – Where respondent had served 10 months of a custodial sentence – Oppressive to require that the respondent be tried for a third time PRACTICE AND PROCEDURE – Legal Practitioners – Where correspondence passed between the solicitor for the respondent/accused and those responsible for the provision of transcription services regarding a suggested error in the reasons of the trial judge – Where the circumstances where such that the solicitor must have known that the correspondence would be sent to the trial judge in support of his application for access to the electronic recording of the judgment – Where the solicitor knew that the issue of whether there was a typographical error went directly to one of the Crown’s proposed grounds of appeal of which he was on notice – Where the solicitor did not notify the Crown of any of his correspondence in which he raised the suggested error – Necessity for legal practitioners to observe the fundamental principle that a judge not receive representations from one party behind the back of the other WORDS AND PHRASES – “steps” – “steps taken by the person to ascertain whether the other person consents to the sexual intercourse”

CRIME – appeal against conviction – sexual offences relating to consensual sexual activity with 15 year old girl over a 10 month period – jury found applicant guilty of offences relating to conduct during most of the period but found him not guilty in relation to conduct near the end of the period – applicant’s knowledge of the victim’s age in issue – whether jury’s differential verdicts could be reconciled on a logical and reasonable basis

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

CRIMINAL PROCEDURE – majority verdicts – whether majority verdict direction can be given

COSTS – indemnity basis – where judgment had been given for plaintiffs – where contract of sale of land had been validly and lawfully terminated – where caveat removed - whether defences and cross-claim were hopeless – whether no prospect of success – first defendant to pay ordinary costs – second defendant to pay indemnity costs

Civil Procedure – stay of proceedings – where defendant involved in concurrent criminal proceedings – disclosure of affidavit material – prejudice – effect on defendant’s right to silence in criminal proceedings – effect on plaintiff’s ability to pursue allegedly misappropriated moneys

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

COSTS – where proposed foreign defendant succeeded in having service set aside – whether costs should follow the event

RESTRICTED PREMISES – ex parte – application under s 3(1) of the Restricted Premises Act 1948 (NSW) – necessary emergency established – declaration sought made

PROCEDURE – notice of motion - no appearance by defendant – defendant overseas – matters to be considered when granting leave to proceed

PROCEDURE – notice of motion – application to vacate the hearing date – refused

CORPORATIONS — Winding up — Statutory demand — Application to set aside – where application seeks to set aside demand for some other reason – where demand said to be for a judgment debt and not verified by affidavit – where demand claims post-judgment interest – whether post-judgment interest “judgment debt” – effect of lack of verification of demand.

CONTRACTS - breach of contract - frustration - implied terms - damages - assessment of damages - whether claim in debt - Service Kill Agreement under which the plaintiff was to purchase cattle, slaughter and produce meat products for delivery to the defendant - where defendant breached by failing to pay amounts due and refusing to take delivery

INJUNCTION – where ex parte injunction granted – whether injunction should be continued to trial – whether material non-disclosure when ex parte injunction granted – whether injunction should be dissolved on that basis; CONTRACT – whether serious question to be tried that breach of contract cured to satisfaction of party asserting breach – whether serious question to be tried that party asserting breach elected not to exercise right to terminate – whether serious question to be tried contract affirmed – where balance of convenience favoured continuation of injunction

COSTS – General rule that costs follow the event –Where plaintiff, defendant and third parties held entitled to interest under a purchase price resulting trust – Issues in the proceedings intertwined – Practical outcome of proceedings is that both parties failed in their principal contentions and each had a partial measure of success – Parties to bear own costs of final hearing; defendant to pay costs of interlocutory hearing

CRIMINAL LAW – Sentence – manslaughter – plea of guilty entered after trial for murder in which the jury acquitted of murder but could not agree on manslaughter – killing by father of infant child

COSTS – appropriate order as to costs – where defendants seek a different costs order from that indicated preliminarily in primary judgment – where plaintiff failed on a dominant issue but successful in obtaining other relief sought – where amount of time directed to the issue on which plaintiff failed was significant – whether appropriate to disturb preliminary view as costs. COSTS – where order for interest on costs not opposed by the unsuccessful defendants – appropriate form of order for interest on costs to take account of reduced percentage of costs payable due to plaintiff’s mixed success.

MENTAL HEALTH – NSW Trustee and Guardian Act - Protected estate manager – Litigant in person – Appointment of NSW Trustee as manager of that part of the defendant’s estate relating to the defendant’s claim for compensation and conduct of District Court proceedings

APPEAL – application for leave to appeal against costs orders made by Land and Environment Court in Class 4 proceedings – no sufficiently arguable case to warrant a grant of leave demonstrated by applicant

CIVIL PROCEDURE — Court of Appeal — Judgments and orders of — Setting aside own orders — UCPR r 36.16(3A) — oral hearing not warranted — incomprehensible grounds — no identifiable error which justifies setting aside own orders — notice of motion dismissed

CRIME – conviction appeal – sexual assault – definition of “female genitalia” – adequacy of direction about “the penetration to any extent of the genitalia… of a female person.” – sufficiency of evidence of penetration - question of admissibility of evidence to rebut defence – question of fair trial – admissibility of “fresh” or “new” evidence – miscarriage of justice CRIME – Crown sentence appeal – whether sentence manifestly inadequate – material alteration on basis upon which sentence imposed – question of totality

INTERLOCUTORY APPEAL – appeal by Crown pursuant to s 5F(2) Criminal Appeal Act 1912 (NSW) – where trial judge stayed indictment pending the provision of further particulars – whether trial judge erred in finding that the relevant counts suffered from latent ambiguity such that further particulars required

CRIME – appeals – sentencing – assessment of objective seriousness – where offence does not carry a standard non-parole period – whether sentencing Judge assessed objective seriousness – where sentencing Judge described the offences as “objectively serious matters” – where issue not taken at first instance – no error demonstrated – appeal dismissed

PROCEDURE – notice of motion – order seeking to stay order for writ of possession – extension of stay granted

PROCEDURE – notice of motion – applications seeking a stay of the writ of possession – short stay granted

CIVIL PROCEDURE – adjournment application – proximity to hearing date – consideration of the plaintiff’s health condition – consideration of absence of legal representation – application dismissed

Judicial advice – Trustee Act, s 63 – trustees for bondholders under a debt facility seek to enter deeds to facilitate the refinancing of the debt facility by paying out certain bondholders but with some other bondholders continuing to participate as members of the refinanced debt facility - whether the trustees are justified in relying on particular resolutions of senior and junior bondholders as an instruction to enter into the documents constituting the refinanced debt facility – whether the trustees are justified in treating outgoing bondholders as “fully paid” under the existing debt financing documents upon entry into the proposed refinancing arrangements.

JUDICIAL REVIEW – application for order of prohibition to restrain magistrate from continuing to hear part-heard criminal proceedings – where magistrate referred to plea of guilty to another offence during course of evidentiary ruling – whether magistrate ought to have disqualified himself on the grounds of apprehended bias

PROCEDURE – notice of motions – orders seeking proceedings to be dismissed – orders made – costs

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

BAIL – need to show cause why detention not justified – cause not shown – bail refused.

BAIL – granted subject to conditions – where applicant has extensive criminal history – where conditions adequately address bail concerns

ADMINISTRATIVE LAW – judicial review – Medical Appeal Panel review of Medical Assessment Certificate by Authorised Medical Specialist ADMINISTRATIVE LAW – judicial review – grounds of appeal properly considered by Panel ADMINISTRATIVE LAW – judicial review – power of Registrar of Workers Compensation Commission to refer matter to Medical Appeal Panel

CRIMINAL LAW – procedure – warrants – validity – whether offence sufficiently described – whether things to be searched for adequately described ADMINISTRATIVE LAW – prerogative writs and orders – generally