Cases and authorities

CIVIL PROCEDURE – Jurisdiction – Transfers to and from other courts – District and Local Courts – Personal injury – Whether damages likely to exceed $750,000 – Transfer ordered

COSTS – application for gross sum order under s 98(4) Civil Procedure Act 2005 (NSW) – sufficient material provided to determine an appropriate sum ­– where cross-claimants unnecessarily contributed to the costs of the proceedings by filing cross-claims which they decided ultimately not to pursue – HELD – gross sum order made

MENTAL HEALTH – s 39 Mental Health (Forensic Provisions) Act 1990 – disposition following judge-alone murder trial – special verdict of not guilty by reason of mental illness – assessment of risk of danger to the person or the public if release into community – conditional release order made

SUCCESSION — Wills, probate and administration — Probate and letters of administration – claim for grant of probate in solemn form – whether will duly executed – whether codicil with no operative effect should be admitted to probate

CIVIL PROCEDURE – application to have two proceedings tried at the same time – proceedings involving same parties and some common questions – desirability of avoiding multiplicity of proceedings

CRIMINAL LAW – Offence – Murder – Mental illness – Where accused repeatedly stabbed deceased – Where accused had a long history of mental illness – Where medical experts diagnosed treatment resistant schizophrenia – Defence of mental illness made out – Accused found not guilty on the grounds of mental illness

CIVIL PROCEDURE - pleadings - allegations of misleading and deceptive conduct by representations contained in written communication - one of thirteen representations struck out - whether implied representation capable of being conveyed in context - appeal allowed

WORKERS COMPENSATION – injury – personal injury arising out of or in the course of employment – where employee suffering from a viral illness died as a result of ventricular fibrillation which caused cardiac arrest – whether Arbitrator and Deputy President identified “injury” within meaning of s 4, Workers Compensation Act 1987 (NSW) – whether employment substantial contributing factor to injury – where Deputy President made finding of “injury” different from Arbitrator – Workers Compensation Act 1987 (NSW), ss 4(a), 9, 9A, 25 WORKERS COMPENSATION – injury – where Deputy President identified “experience of stress” as s 4 “injury” – whether injury “psychological injury” – Workers Compensation Act 1987 (NSW), s 11A WORKERS COMPENSATION – appeal from Arbitrator to Presidential member pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 – whether decision of Arbitrator affected by error of fact, law or discretion – whether Presidential member erred in point of law EVIDENCE – sufficiency of evidence – competing medical evidence as to cause of employee’s death – whether sufficient proof to support finding of probable causal connection where medical science did not deny possibility of connection – whether Arbitrator overlooked material medical evidence – whether Deputy President’s reasoning processes inadequate – whether sufficient analysis of medical evidence ADMINISTRATIVE LAW – procedural fairness – whether appellant raised new issue on appeal – whether respondent had opportunity to call evidence WORDS & PHRASES – “injury”

CIVIL PROCEDURE — Hearings – Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed of company arrangement – where objecting shareholders seek deferral of hearing to prepare objections – whether hearing should be deferred

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

CIVIL PROCEDURE – Stay of proceedings – Pending appeal – Whether stay is in the interests of justice – Stay granted

EVIDENCE – Relevance

EVIDENCE – Cross-examination – Leave to cross-examine in interlocutory proceedings – Leave refused

PROCEDURE – Miscellaneous procedural matters – No issue of principle – Without prejudice dismissal of small money claim when caveat not extended

PRACTICE AND PROCEDURE – 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)

HIGH RISK OFFENDER – Preliminary hearing – Where defendant had a long history of violence offences – One instance of serious violent offending – Whether Court could be satisfied to the requisite standard that defendant posed an unacceptable risk of committing a further violent offence

CIVIL PROCEDURE – application for hearing date to be vacated

APPEALS – competency of appeal – whether appellant’s affidavit complied with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.22 – whether appeal involved a matter to the value of $100,000 or more – whether respondent entitled to costs order having failed to file an objection to competency within the time specified by UCPR r 51.41(1).

CRIMINAL LAW – sentence appeal – conviction appeal added by leave – one offence statute barred – assessment of objective seriousness – historical sentencing patterns – utilitarian value of pleas of guilty – prospects of rehabilitation – totality – no point of principle

DEFAMATION – defences – defence of truth – whether adequate particulars given – matters complained of consisting of emails to a disciplinary body concerning alleged dangerous riding during a polo match

CIVIL PROCEDURE — Separate determination of questions – where separate question would reduce length and costs of hearing if balance of hearing no longer required – whether risk of prejudice – whether separate question should be ordered – form of question.

SUCCESSION – Executors and administrators – Administration ad litem

CIVIL PROCEDURE – motion to amend Statement of Claim – historic allegation of sexual abuse – where key witnesses deceased – where no explanation for lateness of amendment – interests of justice

CRIMINAL LAW – bail – application for bail – further release application – s 74 of the Bail Act 2013 (NSW) – whether a possibility of a plea being entered constituted changed circumstances under s 74(3)(c) – further bail application cannot be heard

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt – where obligation to pay part of debt contested by Plaintiff’s evidence of oral terms of contract - where obligation to pay balance of debt not contradicted by Plaintiff’s evidence

COSTS — Party/Party — Costs orders in interlocutory proceedings — where parties compromised security for costs application and no hearing on merits conducted – proper order as to costs of application COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – where Calderbank offer as to interlocutory application not accepted – where application settled before hearing on terms no more favourable to offeree – whether reasonable for offeree not to accept

CRIMINAL LAW - application for inquiry into conviction - s 78 Crimes (Appeal and Review) Act 2001 - Applicant convicted of murder - appeal dismissed by Court of Criminal Appeal - matters raised by Applicant previously dealt with on appeal - application refused under s 79(3) Crimes (Appeal and Review) Act

Evidence – family provision – subpoenas seeking documents concerning circumstances of execution of will – setting aside – legitimate forensic purpose – fishing expedition – privilege – claim for privilege not asserted by recipient of subpoena – entitlement to refuse to produce documents

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings to Local Court – where Defendant incorporated overseas – where Local Court service cannot be effected overseas – proper jurisdiction – where judgments of the Supreme Court are enforceable overseas by statute but judgments of the Local court are not

CRIMINAL LAW – ex parte – application for criminal assets restraining order – unexplained wealth order

APPEAL – application for security for costs – s 1335(1) Corporations Act 2001 (Cth) – corporate trustee with right of indemnity – evidence does not indicate that the appellant would be unable to pay costs if unsuccessful on appeal – notice of motion dismissed

APPEALS – leave to appeal – consent order – judgment entered when defendant failed to comply with settlement deed – whether injustice going beyond merely arguable demonstrated – application dismissed.

APPEAL – application for stay of enforcement of orders pending appeal – appeal likely to be rendered nugatory if stay not granted – stay granted

WORKERS COMPENSATION – worker injured in motor vehicle accident – workers compensation insurer seeks indemnity from person responsible for the motor vehicle accident – primary Judge finds that the injured worker’s injuries were caused by the motor vehicle accident – whether primary Judge gave adequate reasons – whether finding in any event should be upheld.

TORTS — Negligence — Proof of negligence — primary judge not satisfied the appellant was injured as a result of the condition of the tennis court — no error in primary judge’s accepting evidence of respondent’s witnesses — no issue of principle raised CIVIL PROCEDURE — Hearings — Adjournment — no error in primary judge’s refusal to adjourn hearing CIVIL PROCEDURE — Separate determination of questions — no error in primary judge’s ordering that question of liability be determined separately and in advance of other issues

CRIMINAL LAW – Crown appeal – attempted sexual intercourse – attempted indecent assault – directed acquittal – direction made before conclusion of Crown case – no case submission – continuation of conduct that eventuates in an act

CRIMINAL LAW – conviction appeal – negligent driving occasioning death – not giving way when making U-turn – where emergency vehicle – whether convictions are unreasonable and not supported by the evidence – whether trial judge erred in construction – s 42 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed) – rr 78 and 79 of the Road Rules 2008 (NSW) (repealed) – whether denial of procedural fairness in trial judge making findings diverging from agreed facts – appeal dismissed SENTENCE – appeal – whether sentencing judge failed to take into account a relevant consideration – whether ICO manifestly excessive – appeal dismissed

CRIMINAL LAW – Sentencing – murder – joint criminal enterprise – parity with shooter – pleas of guilty and assistance to authorities of exceptional nature – discount awarded – possession of pistol with Form 1 for possess ammunition – totality principle – sentence imposed

TAXES AND DUTIES — payroll tax — liability to taxation — out of hours cleaning services provided to supermarkets and other businesses — “employment agency contracts” — whether services procured “for a client” of the employment agent — Payroll Tax Act 2007 (NSW), s 37(1)

CRIMINAL LAW – sentencing – murder – wounding with intent to cause grievous bodily harm – offender abused and tormented ex-partner – offender followed ex-partner to shopping centre – ex-partner on dinner date – offender stabbed companion to death and wounded ex-partner – murder planned – no remorse – plea of guilty – comparable cases – accumulation and concurrency – sentence for wounding 12 years with non-parole of 9 years – sentence for murder 34 years with non-parole of 24 years

LAND LAW – conveyancing – the contract for sale – rescission – “off the plan” purchases – vendors required to use either reasonable endeavours or best endeavours to cause plan of subdivision to be registered – plan not registered by required date – whether vendor entitled to rescind – rescissions ineffective CONTRACTS – causation – principle that a party cannot exercise a right in reliance on an event that results from its own default – whether innocent party must prove that default materially contributed to the occurrence of the event or prove on balance of probabilities that default caused the event – party not able to exercise a right of rescission if it has materially contributed to the occurrence of the event that gives rise to the right CONTRACTS – damages – date of assessment – where defendants repudiated contracts by invalid rescission – subject matter of contract subsequently sold by receiver – plaintiffs terminated contracts shortly before hearing – whether date of assessment is date of termination or earlier date – damages assessed at date of termination CONTRACTS – damages – loss of bargain damages – requirement of plaintiff to prove it was ready, willing and able to perform its obligations – standards of readiness, willingness and ability for termination for breach and proof of damages – plaintiffs ready, willing and able to complete up to time of termination

SENTENCING – sentence following trial – murder of three-year old child by mother and stepfather - mother killed child – stepfather guilty by application of principles of extended joint criminal enterprise – joint criminal enterprise between mother and stepfather to assault child over 51-day period before murder occurred – extensive emotional and physical abuse over 51-day period before murder occurred – fatal injuries committed by mother attacking the child in a manner involving substantial acceleration/deceleration forces – parents stated injuries occurred by tripping - pattern of assaults taken into consideration in assessing objective seriousness – victim impact statements of extended family considered – objective seriousness determined as very significantly above mid-range for mother – objective seriousness determined as significantly above the mid-range for stepfather – mental illness of mother considered – hardship of likely protective custody for both parents considered – statutory threshold for life sentences in s.61(1) Crimes (Sentencing Procedure) Act 1999 not met – standard non-parole period of 25 years - sentence of 44 years with a non-parole period of 33 years imposed on mother – sentence of 40 years with a non-parole period of 30 years imposed on stepfather – consideration as to whether “de facto” life sentences

CIVIL PROCEDURE – consent judgment – application to set aside – whether entered in bad faith – whether entitlement to be heard CIVIL PROCEDURE – consent judgment – absolution of defendant’s liability to other defendant’s in cross-claim CIVIL PROCEDURE – right to be heard – party affected by order or judgment SUPREME COURT – general jurisdiction under s 23 Supreme Court Act – whether permits setting aside of judgment otherwise prohibited by Uniform Civil Procedure Rules

PRACTICE AND PROCEDURE – civil – costs – challenge to validity of proposed amalgamation of local government areas – challenge dismissed at trial – respondent abandons proposal – appeal discontinued – whether success inevitable – whether respondent’s conduct unreasonable – whether respondent should pay costs of trial – whether respondent should pay costs of appeal

COSTS – application to reopen costs orders – whether alleged failure of appeal court to deal with two grounds of appeal justifies reopening costs orders made in relation to trial and appeal proceedings JUDGMENTS AND ORDERS – application to reopen pursuant to Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17 – whether judgment failed to address two appeal grounds – whether failure sufficient to warrant reopening in interests of justice – whether circumstances limiting practical consequences of reopening to allocation of costs affects exercise of discretion to reopen

CIVIL PROCEDURE – application to vacate hearing date – no question of principle

DEFAMATION – publication – whether adequately pleaded – conversation noted in an email – plaintiff pleading cause of action in respect of conversation based on content of email DEFAMATION – imputations – whether adequately precise

POSSESSION – application to stay execution of writ – hardship – one of six siblings suffering chronic grief following the death of their mother – whether short stay warranted on hardship grounds