Cases and authorities

NEGLIGENCE – motor vehicle accident – collision between two motorcycles, one driven by Mr Lamont and one driven by respondent – whether risk of occurrence was an “inherent risk” – whether Mr Lamont owed the respondent a duty of care NEGLIGENCE – contributory negligence - whether primary judge erred in assessment of the culpability of respondent – whether primary judge erred in respect to factual findings of respondent’s level of intoxication, visibility, speed and auditory clues at the time of collision

CRIMINAL LAW – sentence appeal – appeal out of time following successful appeal by co-offender – element of offence treated as aggravating feature – application of the parity principle

CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of sexual intercourse without consent but convicted of indecent assault – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis

HIGH RISK OFFENDER – preliminary hearing – application for interim detention order – no opposition to orders sought

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Dismissal of motion to set aside consent orders – Where motion to set aside consent orders stayed by operation of s 471B Corporations Act 2001 (Cth) – Want of due dispatch

CIVIL LAW – appeal from decision of the Local Court Small Claims Division original dispute over $12,000 – question of law alone – asserted denial of procedural fairness – asserted failure to assist unrepresented litigant – question of adequacy of reasons – no error established – no point of principle

Costs – gross sum assessment – protracted complex proceedings – party against whom order sought impecunious and unrepresented

APPEALS – leave to appeal – interlocutory judgment of District Court – refusal of leave to prosecute respondent for perjury – refusal to refer alleged contempt of court to Supreme Court – allegation of bias and hostility – whether findings of fact open to primary judge – whether primary judge impermissibly determined if contempt had been committed – whether issue of general public importance – third application in relation to substantially similar issues

Civil procedure – third party application to intervene – proper plaintiff in estate proceedings – amicus curiae – where administrator of estate is willing and able to provide adequate assistance to the Court

PRACTICE AND PROCEDURE – costs – determination of successful party – orders made by Magistrate did not correspond with orders sought in notice of motion but order sought orally in the alternative at the hearing – Magistrate made no order as to costs – leave to appeal refused APPEAL – requirement for leave when question of law raised but order made related to costs – leave refused

SUCCESSION — family provision and maintenance — failure by testator to make sufficient provision for applicant — father disinherits only adult son to leave whole estate to a charity — whether estrangement — Succession Act 2006, ss 59, 60

SUCCESSION — Family provision — Application for family provision order — Application made out of time — Whether leave to make application out of time should be granted — Where deceased appointed daughter as trustee of discretionary trust — Where deceased executed a memorandum of wishes instructing daughter to pay income from trust to her father — Where daughter paid income to father for eight years — Where father remarried and daughter ceased making payments — Where father failed to lodge family provision application for a further two and a half years — Whether father can show sufficient cause. SUCCESSION — Family provision — Application for family provision order — Where deceased left half interest in two properties — Where plaintiff was the husband of the deceased and resided in one of the properties — Whether plaintiff should be allowed to continue to reside in one of the properties — What orders should be made. REAL PROPERTY — Tenants in common — Exclusion — Whether plaintiff excluded defendant from property — Whether defendant entitled to occupation fee or mesne profits — Where plaintiff changed locks — Where defendant had interest in property as trustee of testamentary trust.

CRIMINAL LAW – sentence appeal – offences of aggravated break enter and commit a serious indictable offence and aggravated sexual assault – 16 years delay between offending and arrest of applicant – delay in sentencing due to failure by applicant to come forward – whether delay properly taken into account by sentencing judge – appeal dismissed.

CORPORATIONS – membership, rights and remedies – validity of resolution of directors of company – where resolution purported to appoint director as chairperson with authority and remuneration additional to that of other directors – whether chairperson resolution was beyond the power of the directors under the constitution – where constitution provided that the directors may delegate their powers to committees of such member or members of their body as they think fit – where constitution also provided that remuneration of directors be determined by the company in general meeting – whether invalid part of single resolution of directors severable. CORPORATIONS – management and administration – where plaintiff is director of company and entitled to be registered as holder of one third of the shares therein as legal personal representative of her late husband who was also a former director – where defendants are the other two directors and each one third shareholders of the company – whether the plaintiff’s late husband and the defendants entered a binding agreement described as proposed preliminary protocols (Protocol) that governed the manner in which the company would be managed and operated – whether the directors qualified their assent to the document before signing – whether the directors intended immediately to be bound to the terms of the Protocol – whether subsequent conduct by the directors indicated the existence of a concluded bargain – whether plaintiff has standing to enforce agreement arising from the Protocol. CORPORATIONS – where constitution of company provided for decisions by directors by simple majority -– where Protocol required a special majority of 70 percent of directors or shareholders for any variation to the way in which the company is managed or operated – whether the chairperson resolution approved by simple majority of directors was invalid - whether Protocol took effect as a resolution of shareholders and operated to alter the constitution of the company to the extent of inconsistency between the two under the doctrine of informal unanimous assent – whether the company is the proper plaintiff or should have been joined as an interested party. ESTOPPEL – Anshun estoppel and abuse of process – whether plaintiff is precluded from asserting that the Protocol was a valid and binding agreement – where plaintiff had earlier instituted proceedings against the company claiming proceeds of insurance policy over the life of her late husband – where in earlier proceedings the plaintiff had asserted the terms of the Protocol had evidentiary value for her claim to the insurance proceeds but did not assert that it constituted a valid and binding agreement – where the chairperson resolution was voted on after the earlier proceeding was instituted – whether unreasonable for plaintiff not to have joined additional defendants in earlier proceedings and raised the issue of the validity of Protocol.

OCCUPATIONS – legal practitioners – application to remove solicitor from roll of Australian lawyers – solicitor forged client’s signature on costs agreement –convicted of publishing false statement to obtain financial advantage – whether solicitor guilty of professional misconduct – whether solicitor not person of good fame and character – whether solicitor’s name should be removed from roll

CIVIL PROCEDURE – restrained funds – application to exclude property from restraint – monies transferred internationally – question of whether property is proceeds or instrument of a serious offence – question of whether property deemed to be proceeds or instrument of crime

CIVIL PROCEDURE — Hearings — Adjournment – where proceedings listed for hearing for three weeks – where Plaintiff contends that it does not have time to prepare for hearing – whether hearing date should be vacated

EVIDENCE – client legal privilege – disclosure of substance of certain legal advice – redacted file notes produced – extent of waiver – whether other party should have access to redacted parts of file notes

COSTS – application for gross sum order under s 98(4) Civil Procedure Act 2005 (NSW) – sufficient material provided to determine an appropriate sum ­– where plaintiff had been legally represented but continued unrepresented because of legal costs –costs found to be reasonable– HELD – gross sum order made

COSTS – no reason to depart from general rule that costs follow the event – no question of principle

CIVIL – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – serious sex offender –application for an extended supervision order – whether the defendant is a high risk sex offender – whether the defendant poses an unacceptable risk of committing a further serious sex offence – consideration of factors in s 9 – rulings on admissibility and weight of evidence – the implication of evidence as to V2 – extended supervision order made for maximum duration of 5 years – conditions imposed

DECLARATIONS – industrial law – consolidation – top up provisions – workers compensation entitlements – construction of award provisions – principles of award interpretation – inapplicability of principles governing construction of contracts – applicability of principles of statutory construction – implication of terms in awards – Interpretation Act – corresponding provisions – modifications – contrary intention – applications for declarations refused

EQUITY – remedies – declarations – whether court should declare that proposed conduct of bookmaker and licensed club would contravene Unlawful Gambling Act 1998 (NSW) – whether exceptional circumstances shown so as to justify the making of such a declaration; GAMING – bookmaker – whether proposed conduct would contravene Unlawful Gambling Act – whether court should so declare

TORTS – medical negligence – nature of doctor’s duty to warn – advice about surgical as opposed to conservative treatment – whether doctor had necessary training and experience – breach of duty established – causation – damages – future domestic assistance damages

SUCCESSION – Executors and administrators – Application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Trustee’s power of appropriation under s 46 of the Trustee Act 1925 (NSW) EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Statutory jurisdiction of court to confer powers on trustee under s 81of the Trustee Act 1925 (NSW)

CRIMINAL LAW – trial date vacated - proceedings against the accused stayed until DPP pays to accused his reasonable costs thrown away by the trial date being vacated – whether the quantum of the legal costs thrown away by the trial date being vacated is reasonable – what amount is payable by the DPP

PRACTICE AND PROCEDURE – joint venture dispute – plaintiff seeks the taking of joint venture accounts - application for the payment of money out of Court – the first defendant paid $375,000 into Court in April 2015 pending final determination of the proceedings – payment made in settlement of interlocutory application – plaintiff claims beneficial interest in defendants’ properties - protracted legal proceedings - proceedings referred out to a referee for the taking of partnership accounts – applicant/first defendant seeks payment out of Court from the funds in Court of the sum of up to $100,000 to pay legal fees – whether an allowance on account of the first defendant’s legal fees should be permitted to be taken from the funds in Court - whether the applicant/first defendant has other sources of funds to pay his legal fees.

APPEAL AND REVIEW – judicial review – supervisory jurisdiction – Supreme Court Act 1970 (NSW), s 69 – application for review of District Court decision dismissing appeal from Local Court ruling – apprehended personal violence order made against applicant – whether District Court decision involved jurisdictional error COSTS – application for review of District Court order awarding costs to respondent – whether decision involved jurisdictional error

PRACTICE AND PROCEDURE– appeal rights prima facie conferred by two separate provisions – appeal from orders of Local Court made under Crimes Forensic Procedures Act 2001 (NSW), s 75L – rights of appeal under Crimes (Forensic Procedures) Act, s 115A and Local Court Act 2007 (NSW), s 70 – whether Local Court Act, s 70 provided for concurrent right of appeal to District Court – whether s 115A exclusively provides for appeals from s 75L orders to the exclusion of s 70 STATUTORY INTERPRETATION – whether inconsistency between enactments of one legislature – whether implied repeal – whether specific provision prevails over the more general – provision conferring jurisdiction not to be read down – reliance on legislative history

CRIMINAL LAW – sentencing – effect of failure to comply with s 16AC of the Crimes Act 1914 (Cth) – failure to specify what sentence would have been imposed but for promise of future assistance – need for re-sentence even though new sentence neither lesser nor greater than sentence imposed in order to comply with s 16AC ADVOCACY – importance of providing sentencing judge with assistance as to applicable legislative provisions in order to ensure that sentence imposed complies with the law

CRIMINAL LAW – conviction appeal – whether trial counsel’s decision to adduce evidence of the applicant’s drug use and prior convictions for credit card fraud occasioned a miscarriage of justice – whether Crown’s cross-examination of the applicant’s dishonesty and convictions for other offences required leave under s 104(2) Evidence Act – whether evidence was inadmissible – whether the Proviso should be applied – whether tendency direction was required – whether “anti-tendency direction” given by the judge occasioned a miscarriage of justice – whether new trial should be ordered

SENTENCING – parity principle – one offender sentenced to 5 years and 11 months with non-parole period of three years and six months for attempted armed robbery – co-offender sentenced to aggregate sentence of nine years and six months with a non-parole period of just over 7 years for common offence and robbery and break and enter offences – applicant claimed a justifiable sense of grievance arising from co- offender’s sentence – contended that only small part of co-offender’s actual period in custody solely referable to common offence – consideration of Postiglione v The Queen (1997) 189 CLR 295 – comparison of actual periods in custody a matter to be taken into account but not determinative – comparison of all components of sentence including sentences being served for unrelated offences required – when criminality of two offenders for common and unrelated offending compared no justifiable sense of grievance arises – when applicant’s sentence for common offence compared to co-offender’s indicative sentence for common offence no justifiable sense of grievance

CRIMINAL LAW – appeal – interlocutory decisions – whether error in refusing the application for separate trials – whether failure to properly construe and apply ss 97 and 101 of the Evidence Act in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in concluding there was no evidence of concoction or contamination in the evidence of the three complainants – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act 1995 (NSW)

CRIMINAL PROCEDURE – unrepresented accused – whether appropriate for Crown Prosecutor to make a closing address – whether trial judge adequately explained aspects of the trial process to the appellant CRIMINAL PROCEDURE – evidence of child complainants in sexual offence proceedings – whether recording of complainant’s interview should have been tendered as an exhibit and given to the jury – consequences of failure to give warning required by s 306X of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE – evidence of complainants in sexual offence proceedings where accused unrepresented – consequences of failure to give warning required by s 294A(7) of the Criminal Procedure Act 1986 (NSW) – consequences of failure to give the appellant an opportunity to reformulate questions in cross-examination of complainant conducted by court appointed person CRIMINAL PROCEDURE – sexual offence proceedings – context evidence – jury not directed not to use context evidence to support tendency reasoning – real risk that jury might have used evidence for impermissible purpose – direction should have been given APPEALS – appeals against conviction – whether it was open to the court to conclude that the appellant did not receive fair trials by reason of the cumulative effect of irregularities at trial – convictions quashed and new trials ordered

LEGAL PROFESSION – Pro-bono scheme – Application for referral – Where applicant complains of professional conduct of former barrister

REAL PROPERTY – Mortgage – Application for default judgment for possession – Where property outside New South Wales – Default judgment entered

CIVIL PROCEDURE – Interim preservation – Freezing orders – Requirements to be met before order made –whether there is a good arguable case – whether there is a danger of judgment not being satisfied – where the balance of convenience lies

EQUITY – Trusts and trustees – Judicial advice – Trustee Act 1925, s 63 contested dispute between beneficiaries – whether the Court should decline to give judicial advice – whether the proceedings should be transformed into an application for substantive relief to bind all interested parties – what directions should be given to re-constitute the proceedings to determine the substantive relief – application involves contests about: the value of the properties in the estate; the date at which the estate’s properties should be valued; the amount of change in value of the estate’s properties over time; and which of several estate or other properties should be substituted for the benefit of the devisees, for a property previously sold by the trustee to meet the estate’s tax liabilities.

CONTRACTS – formation of contract – oral contract – plaintiff claims binding oral agreement to vary lease – no reliance placed by defendant on Conveyancing Act 1919 (NSW), s 54A – binding oral agreement not established LEASES AND TENANCIES – variation of lease – oral variation - plaintiff claims binding oral agreement to vary lease – no reliance placed by defendant on Conveyancing Act 1919 (NSW), s 54A – binding oral agreement not established

CIVIL PROCEDURE — Motion seeking orders to give effect to settlement of proceedings – where settlement terms entitle mortgagee to vacant possession and writ of possession if sale not effected by mortgagor on terms reasonably acceptable to mortgagee – whether sale effected on terms reasonably acceptable to mortgagee

CRIMINAL LAW – s 5F Appeal – abuse of process – principle of finality – fourth trial – refusal to grant permanent stay

CORPORATIONS — Winding up — Statutory demand — Claim for offsetting – where Plaintiff’s offsetting claim is for breach of contract – competing constructions of contract – whether Plaintiff has arguable offsetting claim

CIVIL PROCEDURE – Leave to file initiating process – Where plaintiff a solicitor asserting lien over settlement sum of former client – Leave granted

CRIMINAL PRACTICE – trial – request by one accused for direction that jury bound to acquit if not satisfied of joint criminal enterprise – potential unfairness to other accused EVIDENCE – criminal trial – inadmissibility of admissions by one accused in case of other co-accused – need to maintain distinction at all times by clear directions – direction sought would tend to undermine distinction – application for direction refused

COSTS – offer of compromise – offer accepted by first defendant – whether plaintiff entitled to its costs up to the date of making the offer – assertion that first defendant is a person under legal incapacity – evidence insufficient to support conclusion of incapacity – first defendant to pay plaintiff’s costs of its claim

CORPORATIONS – where plaintiff company sought declaratory relief that it had entered into contract for the transfer of land to the defendant company – where both sole director of defendant company and appointees under an irrevocable Power of Attorney claimed the right to represent defendant company – where attorneys initially opposed the declaratory relief sought – validity of Power of Attorney not yet determined – where attorneys subsequently ratified and adopted the contract – whether appropriate to grant declaratory relief – whether requirement for a contradictor satisfied.

CONTEMPT – dealing by way of mortgage with property that was subject to freezing orders – conduct designed to obtain benefit for contemnor and to deprive plaintiff of proceeds of earlier litigation – administration of justice and authority of the Court affected – sentence imposed.

EXTENDED SUPERVISION ORDER – high-risk violence offence – jurisdiction to make orders – jurisdiction to take account of later sexual offending – evaluation of risk – Court possesses jurisdiction – in absence of unacceptable risk of sexual offending Court did not impose conditions relating thereto – discussion of capacity to make orders requiring defendant to undertake employment – Extended Supervision Order granted.

MOTOR VEHICLE ACCIDENT – motor vehicle and ambulance – collision at an intersection – ambulance on route to emergency – whether trial judge erred in relation to factual findings – scope of an ambulance driver’s duty of care – whether ambulance driver took reasonable care in approaching and driving through an intersection – whether ambulance driver breached duty of care – social utility of ambulance driver responding to an emergency – contributory negligence of motor vehicle driver

CRIMINAL TRIAL – juries – application for discharge made by one accused on the basis of content of Crown address – Crown address prejudicial and misleading since it highlighted matters in the recorded interview of one accused which were inadmissible in trial of co-accused – impression created by Crown address could be remedied by prompt withdrawal of suggestion by Crown and explicit direction from trial judge – application for discharge refused