Cases and authorities

PROTECTIVE JURISDICTION – Interim payment – Where plaintiff is a minor – Where appointment of private fund manager is pending – Where defendant has admitted negligence – Agreement of parties approved

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – Judicial review of NCAT decision – Case removed to Court of Appeal

CIVIL PROCEDURE – Personal injury – Hearings – Expedition – Expedited hearing ordered

CIVIL PROCEDURE – Service – Ex parte application – Application for short service CIVIL PROCEDURE – Interim preservation – Ex parte application – Freezing order

CIVIL PROCEDURE – unclaimed funds – application under UCPR r 41.10 – where mortgagee directed surplus funds to Court – held that identity of mortgagor verified

INSURANCE LAW - CONTRACT - construction of a clause in an insurance policy which makes provision for indexation - whether indexation applies to the deductible - HELD: it does

COSTS – no issue of principle

APPEALS – leave to appeal – appeal under Supreme Court Act 1970 (NSW), s 101(3A) – whether subject to leave requirement under s 101(2)(r) APPEALS – right of appeal limited to decision on question of law – whether open to appellant to allege procedural unfairness – circumstances giving rise to an implied decision that process adopted not unfair EMPLOYMENT AND INDUSTRIAL LAW – public sector employee dismissed as a result of disciplinary action – employee appealed to Industrial Relations Commission – whether decision of Commission upholding dismissal on basis of uncharged conduct within jurisdiction – whether decision involved procedural unfairness

ADMINISTRATIVE LAW – Ombudsman – review of Ombudsman's findings and report – scope of s 35A of Ombudsman Act 1974 (NSW) – whether power to grant leave nunc pro tunc after claim determined – whether claims fall under s 35B – whether notices to produce liable to be set aside based on s 35 of the Ombudsman Act 1974 (NSW) and s 165 of the Police Act 1990 (NSW) CONSTITUTIONAL LAW – validity of s 35A of Ombudsman Act 1974, if it precludes review of findings of Ombudsman – whether s 35A limits the constitutionally protected jurisdiction of the Supreme Court – validity of s 35 of the Ombudsman Act 1974 and s 165 of the Police Act 1990, if they preclude issue of notices to produce – whether those provisions intrude upon the constitutionally protected jurisdiction of the Supreme Court STATUTORY INTERPRETATION – determining questions of construction before constitutional issues – construing to full extent of power, pursuant to Interpretation Act 1987 (NSW), s 31 – privative provision – use of legislative history WORDS AND PHRASES – “want of jurisdiction” – “thing done … for the purpose of executing this or any other Act” – Ombudsman Act 1974 (NSW), s35A

CRIMINAL LAW – damage to property – Crimes Act 1900 (NSW) s 195 – protester suspended himself from coal loader – coal loader rendered inoperable for two hours until he was removed – protester convicted of intentionally or recklessly destroying or damaging property – coal loader not itself damaged – meaning of “destroys or damages” PROCEDURE – stated case – Criminal Appeal Act 1912 (NSW), s 5B – limitations on powers of Court of Criminal Appeal

EVIDENCE – recorded telephone conversations – those conversations which were intercepted with the knowledge of parties not illegally obtained – those conversations which were intercepted without the knowledge of the accused Bloodsworth were illegally obtained – significant probative value in light of proximity of conversations to the acts which caused the death of the deceased – relevance of relationship between the two accused relevant to joint criminal enterprise – evidence admitted EVIDENCE – alleged danger of unfair prejudice to accused Bloodsworth arising from her request for “crack” – no appreciable prejudice in light of substantial evidence in trial of her drug addiction and the conduct of the accused Errington in supplying her with drugs STATUTORY INTERPRETATION - Telecommunications (Interception and Access) Act 1979 (Cth) covers the field of telephone interception – application within telephone which records telephone calls from that device constitutes an interception within meaning of Commonwealth Act – no room for operation of Surveillance Devices Act (NSW)

CORPORATIONS — Winding up — Statutory demand — Application for extension of time to comply with statutory demand – where appeal would otherwise be rendered nugatory – whether appeal has prospects of success and whether arguable case has been shown – whether potential prejudice to the parties.

CORPORATIONS — Winding up — Liquidators — Replacement – where proposed appointee to vacancy is a partner of the same firm as resigning liquidator – whether Second Plaintiff should be appointed liquidator of companies

CRIME – sentence – constructive murder – home targeted thought to be of drug dealer – two offenders – joint criminal enterprise – objective of threatening any occupants and using violence if necessary to steal – offender tied up victim with tape – forceful and sustained assault causing death – cannot say who inflicted the fatal violence – mid-range objective seriousness – two other offences on Form 1 CRIME – sentence – offender’s personal circumstances – sexual and physical abuse in youth – early homelessness – long history of substance abuse – low intellectual abilities – diagnosis of complex trauma – reduced moral culpability – extensive criminal record – high risk of re-offending – personal deterrence and protection of community – assistance to authorities – guilty plea – remorse not completely genuine

CRIMINAL LAW - admissibility of evidence – tender by the Crown of statements made by accused in intercepted telephone conversations - probative value – whether capable of being interpreted as admissions of guilt

CORPORATIONS — Arrangements and reconstructions — Schemes of arrangement or compromise – Application for approval of capital stockholders’ scheme of arrangement and members’ scheme of arrangement – where schemes would convert co-operative to public limited company under the Corporations Act 2001 (Cth) and convert capital stock to shares

ASSOCIATIONS AND CLUBS — general matters — constitution — officers, trustees, servants and committees — Jurisdiction of the Courts — Interference in internal management

CONTRACTS – illegality – contracts contrary to public policy – whether contract was one to commit an unlawful act, namely to delay the payment of stamp duty – consideration of the circumstances in which a court may enforce a contract even if its formation or performance is associated with illegal purposes – Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 – Nelson v Nelson (1995) 184 CLR 538 EQUITY – equitable remedies – specific performance – whether respondent should be denied an order for specific performance of a contract for sale on the ground of illegality of the contract EQUITY – defences – unclean hands – whether conduct disentitling respondent to relief – Dewhirst v Edwards [1983] 1 NSWLR 34 – respondent’s supposed impropriety was incidental or collateral to the contract – respondent’s impugned conduct had ceased – primary judge was correct in rejecting the defence

CIVIL PROCEDURE – Medical negligence – Whether conference of liability experts should be held with a facilitator

CRIMINAL LAW – Offender pleads guilty in Supreme Court to manslaughter – Offender charged with armed robbery offences to proceed to trial by jury in District Court – earlier trial of armed robbery matters aborted because of publicity concerning circumstances of manslaughter offence – temporary non-publication order made concerning manslaughter proceedings – order to be lifted after verdicts returned in armed robbery trial

Civil Procedure – security for costs – individual plaintiff resident in Japan – no assets in Australia – whether security should be ordered – whether security should be limited to costs of registration of costs judgment in Japan – onus of proof

COSTS – indemnity costs – no reasonably arguable case – gross sum assessment – desirability of preventing further satellite litigation concerning costs and costs assessment

CRIMINAL LAW - murder trial – applications for further directions at conclusion of summing-up – publication of reasons for rulings

PROCEDURE – costs – costs orders where a party succeeded on some issues and failed on others – exceptions from the general rule as to costs

CRIMINAL LAW – murder trial – applications by media for access to exhibits during trial – relevant considerations – approach to application concerning evidence subject to non-publication orders

CRIMINAL LAW – murder trial – whether provocation manslaughter and manslaughter by unlawful and dangerous act ought be left to the jury – provocation manslaughter not left to the jury – manslaughter by unlawful and dangerous act left to the jury – publication of reasons for rulings

SUCCESSION - Administration of Estates – Probate – Rectification of Will – Will prepared by solicitor – Clerical error, and failure to give effect to testator’s instructions, in will preparation – Accidental omission of name of beneficiary – Rectification granted. PRINCIPAL AND AGENT – Power of attorney – Enduring appointment – Attorney not authorised to benefit from exercise of power – Power to make gifts of principal’s property to third parties – Exercise of power qualified by fiduciary obligations owed by attorney to principal, and obligation not to commit fraud on power – Attorney not entitled to divest principal of substantial asset for her own purposes and without benefit to principal. EQUITY – Fiduciary obligations – Breach by fiduciary’s transfer of principal’s property to third parties – Active participation by third parties in fiduciary’s breach – Obligation of fiduciary to restore estate of principal – Accessorial liability of third parties, to return property to principal – Property held on trust for estate of deceased principal. SUCCESSION – Ademption – Inter vivos alienation of property of incapacitated principal by enduring attorney acting, without authority, in breach of fiduciary obligations owed to principal – Property held on trust for principal by third parties to whom attorney transferred property – Estate of principal remains beneficially entitled to property – Property to be restored to deceased estate of principal – No ademption of principal’s testamentary gift of property. SUCCESSION – family provision – Adult daughters of deceased farmer – Relief granted conditionally upon restoration of property to deceased estate. LEGAL PRACTITIONERS – Solicitors – Professional negligence – Retainer by enduring attorney of incapacitated principal – Instructions to divest principal of main asset – Duty of care owed to disappointed beneficiary of deceased principal. TORT – Negligence – Duty of care – Duty of solicitors retained by enduring attorney of incapacitated principal – Attorney instructed solicitors to act on inter vivos gift of principal’s main asset to third parties without benefit to principal – Action for damages by disappointed beneficiary of deceased principal – Duty of care owed by solicitors to beneficiary.

Succession – family provision – estate left to son of deceased – plaintiff older son of deceased – mature and independent adult – no provision made for plaintiff – plaintiff estranged from deceased – unreasonableness of deceased’s attitude towards plaintiff – beneficiary’s contribution to assets and welfare of deceased – beneficiary’s expectation of inheriting property – financial mismanagement – whether provision for plaintiff is “proper”

CRIMINAL LAW – murder trial vacated – application for stay of indictment until payment by Crown of accused’s costs thrown away – whether circumstances leading to need for adjournment the fault of the Crown – whether unfairness to accused

REAL PROPERTY – Contract for the sale of land -developer purchases development site under a contract with terms permitting the vendor to retain two of 13 units from the proposed development – contract permits the developer to take legal title to the site before the development is complete, to assist the developer in financing the development – a term in the contract requires the developer to develop the site expeditiously and in any event within three years of the contract – but in certain circumstances of the incapacity of the developer to retransfer the two units to the vendor, the contractual terms permit the developer to pay the vendor $1,500,000 in lieu of the re-transfer – the developer funds the development with pre-sales contracts, first mortgage bank finance and second mortgage mezzanine finance – vendor holds a mortgage over the site to secure the transfer back to the vendor of the two units upon completion of the development – developer encounters various delays in completing the development, which is not completed within the required three years – due to increases in building costs over the period of the delay, the completion of the development becomes uneconomic for the developer with the limited revenue that is available from the existing pre-sales contracts – developer seeks to sell the property to a group associated with the pre-sales purchasers – vendor seeks to acquire the bank’s first mortgage and exercise the bank’s power of sale to sell the property to a third party – whether the vendor may acquire the first mortgage and exercise the power of sale over the property, or whether the developer may sell the development property free of the vendor’s third mortgage, upon payment of the $1,500,000 to the vendor.

CRIMINAL LAW – sentence imposed – miscalculation rendering sentence inconsistent with Crimes (Sentencing Procedure) Act 1999 – s 44 and s 43 – operation of s 43 of the Act; PRACTICE AND PROCEDURE – miscalculation – ration 70:30, not 75:25 – operation of “slip rule”

Equity – Fiduciary Obligations – Breach – Depends on scope of obligations – Obligations proscriptive – Fiduciary accountable for property received in breach of obligations – Not liable to account for property acquired by others operating outside scope of fiduciary obligations. Equity – Under Influence – Relationship of Influence – Presumption of Undue influence – No rebuttal of presumption – Receipt of property by dominant party – Liability to account for property received – Nature and extent of liability Succession – Family provision – Eligible persons – Adult claimants – Dependent members of same household as deceased – Relief granted.

BUILDING AND CONSTRUCTION – where insurer issued builders’ home warranty insurance indemnifying owner against risk of being unable to have builder rectify or compensate for defective building work – where directors of builder indemnified insurer against that liability – whether action under indemnities statute barred by s 109ZK of the Environmental Planning and Assessment Act 1979 – whether action to enforce the indemnity is a “building action” as defined by that Act

COSTS — Party/Party — Appeals — Appeal from a costs assessment to District Court—summons for judicial review — whether review panel applied the wrong legislation — whether primary judge erred by finding that the Legal Profession Act 2004 (NSW) applied to costs assessment — Legal Profession Act 2004 (NSW) applies to costs which relate to proceedings commenced before 1 July 2015 in accordance with Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) — application is without merit — no error of law in primary judge’s reasoning

PROCEDURE – vexatious litigants and proceedings – whether applicant has shown cause why he should not be prohibited from instituting or maintaining proceedings relating to the subject matter of the present proceedings – whether applicant has frequently instituted or conducted vexatious proceedings in Australia – where applicant has on several occasions taken steps in proceedings that have been found to be vexatious and an abuse of process – where applicant has on other occasions taken steps in proceedings with no reasonable cause – whether terms of vexatious proceedings order should preserve the applicant’s right to seek an extension of time for a statutory appeal against decisions of NCAT.

ENVIRONMENT AND PLANNING – construction of development consent – development consent approved 90-lot subdivision – whether condition 16 of development consent required construction of reinforced concrete pipe ENVIRONMENT AND PLANNING – construction of development consent – whether a document can be retrospectively incorporated into a development consent by “necessary implication”

SENTENCING - Appeal against sentence - specific offences - historic child sexual abuse - offences by a religious brother and teacher against three boys (aged between nine and 11 years) during 18-month period in 1980 and 1981 - 12 offences of indecent assault, buggery and attempted buggery, with seven further offences on a Form 1 - severity - whether principle of totality applied - whether any error in imposing indicative sentences - whether aggregate sentence manifestly excessive SENTENCING - Appeal against sentence - specific offences - historic child sexual abuse - whether due regard was had to sentencing practices at the time of the offences SENTENCING - Appeal against sentence - remorse, rehabilitation and good character - where limited evidence lead by the offender - whether post-sentence conduct was sufficiently considered by the sentencing judge ­- whether sentencing judge erred in failing to make findings of remorse, rehabilitation or good character in the light of limited evidence

CRIMINAL LAW – procedure – adjournment – stay of proceedings or order restraining proceedings – application for temporary stay of trial pending determination of application for leave to appeal pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether decision to permit evidence to be given by AVL was an “order” – whether trial judge erred in exercise of her Honour’s discretion to accept that evidence could be given by AVL and to refuse adjournment application

PRACTICE AND PROCEDURE – Where plaintiff brought urgent application before the duty judge arising from the refusal of the Sheriff to allow his solicitor entry into a building housing the Local Court – No originating process filed – Uncertainty as to the terms of the orders and the entities against whom such orders were sought – Where the plaintiff was to appear before the Local Court for sentence – Where plaintiff arrived at Court accompanied by his solicitor – Where solicitor proceeded through Court security and in doing so activated an alarm – Solicitor was then asked by the Sheriff to remove his belt – Where solicitor refused Where solicitor asserted that the Sheriff was interfering with the course of justice in asking him to remove his belt – Whether the request to the solicitor to remove the belt was lawful – Whether the plaintiff should have the Local Court proceedings against him stayed – Where Sheriff prima facie had a statutory power to direct the solicitor to remove his belt – Where the conduct of the solicitor was relevant to the granting of the orders sought – Where that conduct tended against the making of the orders in the exercise of the court’s discretion – Orders refused – Proceedings dismissed

CRIMINAL LAW – application for a separate trial – where evidence adduced against one co-accused prejudicial to the other co-accused – where prejudice can be overcome by a direction to the jury CRIMINAL LAW – responsibility of counsel to make timely objection when plain that further evidence not being led by Crown before witness excused – accused bound by conduct of counsel

Costs – party/party – offer of compromise – judgment for plaintiff no more favourable than offer – effect of notice disputing a fact where fact subsequently admitted – Uniform Civil Procedure Rules 2005 (NSW), rr 42.8, 42.15

SUCCESSION – Wills, probate and administration – Making of a will – Informal documents – Dispensing with requirements for execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Whether person named as trustee in informal document was an executor according to the tenor of the will

EQUITY – Equitable charges and liens – Creation – Whether lease agreement contained language sufficient to create a charge EQUITY – Equitable charges and liens – Remedies – Judicial sale – Whether court has power to make an order for possession as ancillary to a primary order for judicial sale

Civil Procedure – family provision – claim allegedly available to estate against third parties – whether subpoena may be issued to third parties – whether plaintiff may be permitted to bring a derivative suit against third parties – prejudice – imposition of terms Equity – estate’s alleged interests in deceased’s parents’ properties – deceased’s payment of funds to parents prior to purchase of property – no evidence of arrangements between deceased and parents – proprietary estoppel – deceased’s contribution to construction of property – alleged promise and detriment inadequately pleaded

CIVIL PROCEDURE – Originating process – Amendment – Appeal from the Local Court – Whether grounds of appeal disclose the making of errors of law – Consideration of distinction between questions of fact and questions of law – Amendment allowed in part

SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions

CIVIL PROCEDURE – case management hearing

APPEAL – application for leave to appeal – construction of commercial contract – whether agreement is an arbitration agreement – whether judgment below attended by sufficient doubt to warrant leave to appeal WORDS AND PHRASES – “arbitration agreement” – Commercial Arbitration Act 2010 (NSW), s 7

CRIMINAL APPEAL – appeal from conviction in Land and Environment Court – guilty plea – conceded that prosecution commenced out of time – conviction set aside and acquittal entered