Cases and authorities

ADMINISTRATIVE LAW – judicial review – whether Proper Officer erred in refusing a referral to a review panel under Motor Accidents Compensation Act 1999 (NSW), s 63 – whether Proper Officer erred in finding that there was no error of a material respect concerning assessment “on the papers” for claimants outside Australia – held no error

ADMINISTRATIVE LAW – judicial review – whether Proper Officer erred in refusing a referral to a review panel under Motor Accidents Compensation Act 1999 (NSW), s 63 – whether Proper Officer erred in finding that there was no error of a material respect concerning assessment “on the papers” for claimants outside Australia – held no error

COSTS – Security for costs – Procedure and discretion – Whether additional security for costs be ordered – Quantum – Whether plaintiff’s financial position has changed – Whether defendant is entitled to the entirety of costs on the motion – No point in principle

CRIMINAL LAW – murder - judge alone trial - defence of mental illness – child killed by mother during psychotic episode - special verdict of not guilty by reason of mental illness

MENTAL HEALTH – Forensic patient – Application for an extension order – Whether court could be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient – Whether any such risk could not be adequately managed by other less restrictive means – Extension order made for a period of 12 months PRACTICE AND PROCEDURE – Application for order prohibiting the publication of the name of the defendant – Where the name of the defendant previously published in successive judgments – No utility in making such order – Application refused

ADMINISTRATIVE LAW – judicial review – whether Proper Officer erred in refusing a referral to a review panel under Motor Accidents Compensation Act 1999 (NSW), s 63 – whether Proper Officer erred in finding that there was no error of a material respect concerning assessment “on the papers” for claimants outside Australia – held no error

CRIMINAL LAW – sentence – murder – death of convicted offender – consequences of the offender’s death – offender cannot be sentenced if deceased – victim impact statements

ADOPTION — Application for adoption — Whether consent of birth parents should be dispensed with — Whether adoption order should be made — Whether order changing name of the child should be made — Whether maternal and paternal adoption plans should be registered.

CRIMINAL LAW – conviction and sentence appeals – applicant convicted of twelve out of fourteen charges – eight counts of sexual intercourse with a child and four counts of aggravated indecent assault – whether error in judge’s directions as to complaint – whether miscarriage of justice occasioned by absence of fresh evidence due to absence of important evidence – whether evidence fresh – whether evidence credible – whether a significant possibility that reasonable jury would have acquitted applicant – evidence not fresh – evidence not credible – no significant possibility that jury acting reasonably would have acquitted the applicant – conviction appeal dismissed – SENTENCE APPEAL – whether proper assessment of objective seriousness of offences – whether aggregate sentence was manifestly excessive – leave to appeal against sentence granted but sentence appeal dismissed.

APPEAL – Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether exclusion of evidence substantially weakens Crown case – HELD – ERISP met threshold test as it was inconsistent with version given by respondent in pretext call APPEAL – Evidence Act 1995 (NSW), s 90 – whether ERISP ought be excluded on grounds of unfairness – alleged unfairness constituted by investigating police not putting their knowledge of content of pretext call to respondent in ERISP – distinction between exclusion under ss 138 and 90 CRIMINAL LAW – no procedural fairness required of police when investigating alleged commission of criminal offence

CRIMINAL LAW – conviction appeal – six charges of aggravated indecent assault on child under 10 and one charge of sexual intercourse with child under 10 brought against grandfather – applicant convicted of three aggravated indecent assault charges and of the sexual intercourse charge – acquitted of three aggravated indecent assault charges – whether verdicts of guilty unreasonable and inconsistent with verdicts of acquittal – logical reason for differences in verdicts – independent assessment of evidence required by Court – position of advantage of jury – ample evidence to support conviction – appeal dismissed.

CRIME – sentencing – offences of detain for advantage – where sentencing judge did not backdate the sentence sufficiently to account for prison time served solely in relation to the offences for which applicant was sentenced – whether sentence should be quashed and new sentence imposed to account for that time – parties in agreement as to orders to be made.

CRIMINAL APPEAL – submission that sentencing judge confine subjective circumstances to the finding on non-parole period rejected – acceptance that sentencing judge erroneously constrained sentencing discretion in relation to the imposition of full-time custodial sentence – effect of policy decisions and prior comments of Court requiring “exceptional circumstances” on statutory regime, if any, discussed – exceptional circumstances probably shown – appeal allowed – applicant’s immediate release ordered.

PROCEDURE – order sought seeking proceedings be dismissed for want of due dispatch – orders made – costs

CRIMINAL PROCEDURE – application for discharge of jury – comments made by Crown in closing address – use of word “aim” in relation to manslaughter charge – use of word “deliberately” in relation to manslaughter charge – where deliberateness not an element of charged offence – where self-defence raised

COSTS - applications by Defendant that Plaintiffs make separate applications for extension of limitation periods - Plaintiffs required to file Notices of Motion to bring on limitation applications - costs of Defendant’s Notices of Motion reserved

PROCEDURE – notice of motion – order seeking mediation – mediation ordered – costs

LIMITATION OF ACTIONS - Plaintiff commences proceedings against the State of New South Wales more than 14 years after his retirement from NSW Police Service in 2001 - claim for psychiatric injury arising from his involvement in traumatic incidents as a police officer - whether separate application ought be made by Plaintiff for extension of limitation period - timing of application - just, quick and cheap resolution of real issues in proceedings - Plaintiff required to file Notice of Motion and evidence in support of application to extend time

LIMITATION OF ACTIONS - Plaintiff commences proceedings against the State of New South Wales more than 13 years after his medical discharge from NSW Police Service in 2002 - claim for psychiatric injury arising from his involvement in traumatic incidents as a police officer - whether separate application ought be made by Plaintiff for extension of limitation period - timing of application - just, quick and cheap resolution of real issues in proceedings - Plaintiff required to file Notice of Motion and evidence in support of application to extend time

COSTS – plaintiff lodges caveat claiming interest in land due to mortgage repayments – lapsing notice served by bankruptcy trustee of plaintiff’s former spouse – plaintiff commences proceedings seeking extension of caveat – plaintiff subsequently commences proceedings in Federal Court – caveat extended until determination of Federal Court proceedings – whether plaintiff should not have commenced proceedings in Supreme Court – whether plaintiff’s delay warrants costs order against her

CORPORATIONS — Members’ rights and remedies — Oppression — closely held family company – where relationship between shareholders has broken down CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground – where company has no director – where affairs of company managed by shareholder under power of attorney EQUITY — Equitable remedies — Specific performance – Suit for specific performance of memorandum of understanding – whether parties to memorandum intended to be legally bound by it – whether specific performance should be decreed

CIVIL PROCEDURE — Pleadings — Amendment CIVIL PROCEDURE — Orders and notations – Leave sought to “withdraw” a statement or offer said to have been recorded in a notation to court orders – Status of notation – Whether notation amounted to acceptance of an undertaking proffered in lieu of an injunction –Notation no more than a record of forensic decision taken in the course of proceedings; neither an undertaking accepted in lieu of an injunction nor an “open offer”

CIVIL PROCEDURE – Pleadings – Applications for summary dismissal pursuant to r 13.4 and/or to strike out parts of the pleadings pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – Whether leave to replead should be granted CIVIL PROCEDURE – Service – Application for substituted service pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW)

ADMINISTRATIVE LAW – judicial review – determination of Appeal Panel of Workers Compensation Commission – appeal from Medical Assessor – whether the deceased suffered a permanent impairment – meaning of “permanent impairment” – scope of appeal and demonstrable error – medical specialist fell into demonstrable error – Appeal Panel acted within its jurisdiction STATUTORY CONSTRUCTION – workers compensation scheme – meaning of “permanent impairment” PROCEDURE – notice of motion – amicus curiae – where amicus’ submissions advance the case of one party but not the other – leave granted

CONTRACTS – construction – evidence of surrounding circumstances – “true rule” in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 – no requirement of ambiguity before regard is had to surrounding circumstances – evidence of surrounding circumstances admissible but insufficient to displace width of contractual language EVIDENCE – admissibility – distinction between admissibility and use – distinction between objection to documentary evidence on ground of relevance and limiting order under Evidence Act 1995 (NSW) s 136 – distinction between evidence of subjective intention and evidence of objective background facts GUARANTEE – scope of guaranteed obligation – whether guaranteed obligation extended to vendors’ loss of bargain following uncompleted contract for sale of land

CRIME – appeal against conviction – integrity of guilty plea – whether applicant understood the nature and elements of the charges SENTENCING – appeal against sentence – plea of guilty – whether applicant saw and agreed to “agreed facts” tendered on sentence – whether Crown agreed not to oppose a specific term of imprisonment – whether Crown agreed not to oppose a specific discount for guilty plea

CRIME – historic child sexual offences – charge of sexual intercourse without consent upon a person under 16 years – s 61D Crimes Act 1900 (NSW) (since repealed) – whether open to jury to be satisfied that applicant was reckless as to whether complainant consented – consideration of meaning of terms “consent” and “reckless” SENTENCING – appeal against sentence – historic child sexual offences – whether sentencing judge did not properly assess the objective seriousness of the offending – whether sentencing judge did not correctly apply relevant historical sentencing practice when fixing non-parole period – whether sentencing judge erred in giving weight to general deterrence

EVIDENCE – Transcript of evidence – Consideration of “transcript of evidence” in s 55C Jury Act 1977 – Whether “evidence” extends to closing addresses of counsel – R v Sukkar [2005] NSWCCA 54 applied – Held that not appropriate to supply transcript of closing addresses to jury

LIMITATION OF ACTIONS - Plaintiff commences proceedings more than 13 years after his resignation from NSW Police Service in 2002 - claim for psychiatric injury arising from his involvement in traumatic incidents as a police officer - whether separate application ought be made by Plaintiff for extension of limitation period - timing of application - just, quick and cheap resolution of real issues in proceedings - Plaintiff required to file Notice of Motion and evidence in support of application to extend time

CIVIL PROCEDURE – discovery – proceedings to enforce loan facilities – where pleadings raise an issue as to whether by reason of its own shortage of funds or a shortage of funds in its parent company the lender was unwilling or unable to advance or loan funds to commercial borrowers – whether that issue is a “real issue in dispute” – breadth of discovery request – requirement to consider proportionality of costs in assessing relevance or necessity of documents sought

CRIMINAL LAW – sentence – murder – intent to cause grievous bodily injury – offence committed in the home of the victim – not pre-meditated – mid range objective seriousness – indigenous offender with criminal record for violence – consideration of the offender’s disadvantaged background – absence of remorse – some prospects of rehabilitation

APPEAL – Appeal from decision of Magistrate in the Local Court in proceedings involving a dispute over a management agreement – Whether grounds raised questions of law or questions of mixed fact and law – Where appellant asserted in respect of some of the grounds that there was no evidence to support the Magistrate’s findings – No ground of appeal made out - Proceedings dismissed

Equity – remedies – specific performance – contract for sale of land – purchaser’s failure to complete – defences to specific performance – futility – financially unable to complete Civil Procedure – discontinuance of proceedings – contract for sale of land – purchaser’s failure to complete – specific performance and general law damages sought by vendor – discontinuance application made by vendor after hearing – alleged loss of forensic advantage – where specific performance would have been granted – appropriateness of dismissal of damages claim – res judicata

APPEALS – application for leave to appeal – finding by trial judge that respondent was unlawfully arrested on the giving of direction by police officer to exit vehicle – whether issue of general importance – whether procedural irregularity in determining matter on issue not identified by parties JUDGMENTS AND ORDERS – issues of witness credibility in trial judge’s factual findings – whether Court able to determine factual disputes on appeal – whether matter should be remitted for retrial TORTS – false imprisonment – direction by police officer that respondent exit vehicle – whether actions of police officer constituted false imprisonment – whether total deprivation of respondent’s liberty TORTS – unlawful arrest – issue as to timing of arrest – whether arrest occurred on police officer’s direction to exit vehicle or at some later point – whether arrest justified

CRIMINAL LAW – sentencing – dysfunctional childhood – early exposure to illegal drug use – whether impact “diminishes” – sentencing judge found ample opportunity to reform – approach contrary to High Court authority – whether different sentence warranted – applicant re-sentenced.

PRACTICE AND PROCEDURE – application for a short adjournment granted for plaintiff to obtain necessary funds to resolve the matter

PROCEDURE - application for an extension of time to file both lay and expert evidence – extension granted – costs orders made

CORPORATIONS — Winding up — Statutory demand — Application to set aside – where application seeks to set aside demand for some other reason – where instalment order had been made in respect of debt – whether instalment order ceased to have effect by reason of non-compliance – whether application filed and served within time ESTOPPEL — Estoppel by representation — where Plaintiff’s assertion as to date of service of creditor’s statutory demand not contradicted by Defendant in solicitors’ correspondence – whether assertion was misapprehension or contention – whether Defendant obliged to respond – whether Defendant estopped – whether estoppel can found Court’s jurisdiction where it is otherwise absent

APPEAL – leave to appeal from Local Court on mixed question of fact and law– where appellant held liable to pay for goods as guarantor in the Court below – whether liability under guarantee was an issue at trial – HELD– issue of liability under guarantee conceded in Court below – plaintiff bound by conduct of her counsel – not in the interests of justice to permit plaintiff to litigate matter conceded in Court below CONTRACTS – guarantee – consideration provided by deliveries made in future on terms other than cash – enforceable against guarantor

EQUITY – trusts and trustees – their appointment, dismissal, estate etc

EQUITY – General principles – Equitable estates and interests – Nature of equitable interests and ownership – Beneficial ownership – Property purchased in the name of defendant alone – Whether Defendant paid whole of purchase price and mortgage, not plaintiff – Whether Plaintiff has no right or interest in property REAL PROPERTY – General principles – Ownership – Beneficial ownership

SUCCESSION – executors and administrators – proceedings by co-executor against fellow co-executor

PRACTICE AND PROCEDURE – appointment of tutor – ss 76 and 77 of the Civil Procedure Act – consent orders – requisite legal incapacity – settlement approved

EQUITY – Joint venture – Breakdown in relationship – Property held on trust – Directions for sale of property and distribution of sale proceeds

CRIMINAL LAW – sentence after trial – shooting murder – contract killing – whether life sentences should be imposed – limitations on sentencing discretion where offenders have previously been sentenced for the same offence

CIVIL LAW – restraining order over large sums of cash – dealt with ex-parte – ancillary order for examination of defendant – ought not to be made ex parte

CIVIL LAW – restraining order over large sums of cash – dealt with ex-parte – ancillary order for examination of defendant – ought not to be made ex parte

CIVIL LAW – stay of part heard criminal proceedings in the Local Court – summons seeking an order prohibited Magistrate from further hearing case – delay in filing application – where stay sought 8 days prior to continuation of part heard proceedings – where explanation for delay difficult to accept – where Court able to deal with matter to finality before the date scheduled for summary hearing to continue

CIVIL LAW – high risk sex offender – preliminary hearing

DEFAMATION – judge-alone trial – publication of material relating to plaintiff’s appeal against her expulsion from the Country Women’s Association (NSW) – matter complained of published only to delegates entitled to vote on whether to confirm decision of State Executive to expel the plaintiff - whether imputations carried – defences of statutory and common law qualified privilege – contextual truth – contextual imputation that the plaintiff had so conducted herself as to warrant expulsion from the CWA proved true – justification – HELD – defence of common law and statutory qualified privilege made out – truth of all imputations established DAMAGES – difficulty of framing hypothesis on which damages to be assessed having regard to findings on defences – obligation of trial judge to determine all issues does not extend to all hypothetical issues – no requirement where would require arid hypothetical exercise – facts found to permit assessment if required INCORPORATED ASSOCIATIONS – whether issues justiciable – jurisdiction to grant declaratory relief may permit determination – factual basis for declarations not made out – application for equitable relief refused