Cases and authorities

CROSS VESTING – plaintiff resident in New South Wales – injured while working on defendant’s mine site in Western Australia – commenced proceedings in New South Wales – whether it appears that in interests of justice to transfer proceedings to Western Australia – weight attached to ensuring forum is place of tort – plaintiff’s ability to access justice in Western Australia – HELD – proceedings not transferred

CRIMINAL LAW – evidence – privilege against self-incrimination – whether witness should be compelled to give evidence – where witness has criminal trial for same offences pending – fundamental alteration of accusatorial system – where admissions made by witness tending to exculpate accused adduced in defence case – interests of justice – where Crown does not seek hearsay direction – where counsel concerned that witness may prejudice accused’s trial – where steps to quarantine evidence undesirable

CRIMINAL LAW – Sentence – shooting murder by bikie gang – initially retribution for relationship with ex-partner of bikie official – then as punishment for attempt to stand up to gang – reasonable possibility of no intention to murder – strong subjective circumstances – not worst case – sentence of determinate period imposed

CIVIL – enforceability of foreign judgment –– whether treble damages and attorney fees ordered by US Court are “penal”– whether Court ought not register a judgment that is penal – HELD – no penal element established – no impediment to registration or enforcement in this jurisdiction – distinction between breach of court rules and breach of court orders

HIGH RISK SEX OFFENDER – preliminary hearing – orders sought by the State – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order – summons dismissed

CIVIL PROCEDURE – application for summary judgment – no significant dispute between facts in plaintiff’s evidentiary statement and that relied on by defendant – summary judgement for negligence claim not opposed by defendant – opposed for intentional torts – intent to cause harm denied – prospect of psychiatric evidence bearing on deliberateness – not a sufficiently clear case that no triable issue – application dismissed for summary judgment in assault and false imprisonment claims

CRIME – recklessly cause grievous bodily harm – conviction appeal – whether verdict unreasonable – whether injuries sustained by victim capable of constituting grievous bodily harm – “glassing” attack – where victim suffered facial lacerations including nerve damage CRIME – recklessly cause grievous bodily harm – sentence appeal – whether sentence manifestly excessive

CRIMINAL LAW – sentence appeal – one count of possess more than three firearms plus Form 1 matters – whether sentence manifestly excessive – importance of general deterrence – no error identified – leave to appeal granted but appeal dismissed.

SENTENCE – appeal against sentence – aggravated sexual assault of victim under authority – aggravated sexual intercourse with person older than 14 years but under 16 years – indecent assault on person under 16 years – whether the sentence proceedings miscarried as the indictment not properly presented – whether sentencing judge double counted as an aggravating factor an element of the offence – whether manifestly excessive

CIVIL PROCEDURE – access to documents – claim for public interest immunity – ongoing investigation CIVIL PROCEDURE – application to vacate hearing date – importance of using allocated hearing dates where practicable

CIVIL PROCEDURE – ceasing to act – Uniform Civil Procedure Rules, r 7.29 – whether solicitor on record should be granted leave to file a notice of ceasing to act where hearing listed for following week

SECURITY – personal property – application for possession of a motor vehicle – defendant in breach of a credit contract giving security over the vehicle

PRACTICE AND PROCEDURE – malicious prosecution – old proceedings – application to amend – previous proceedings dismissed for want of prosecution – plaintiff seeks to include causes of action pleaded in previous proceedings – abuse of process – application for pro bono referral – plaintiff convicted of pervert course of justice – inappropriate for pro bono referral – access to documents

REAL PROPERTY - torrens title - caveats against dealings – application for extension – no issue of principle

CONTRACTS – construction and interpretation – general principles of construction – defendant purchased land subject to plaintiffs’ leases as part of series of transactions – parties entered into deeds at time of purchase – whether deeds provide for right of possession or occupation in plaintiffs after termination of leases – no right of possession or occupation LEASES AND TENANCIES – licences – defendant purchased land subject to plaintiffs’ leases as part of series of transactions – parties entered into deeds at time of purchases – whether deeds provide for right of possession or occupation in plaintiffs after termination of leases – no right of possession or occupation

CRIMINAL LAW - application for inquiry into convictions - seventh application made - Applicant convicted of seven counts of murder and detaining for advantage - appeal dismissed by Court of Criminal Appeal and special leave to appeal refused by High Court of Australia - matters raised by Applicant previously dealt with on earlier applications - no special facts or circumstances demonstrated - application refused under s 79(3) Crimes (Appeal and Review) Act

PRACTICE AND PROCEDURE – Notice of motion seeking order for removal of party or alternatively an order dismissing the proceedings – No point of principle

CRIMINAL LAW – evidence – evidence of width of samurai sword – where pathologist gave evidence that fatal wound could have been caused by sword – where pathologist asked to assume width of sword was 2.5 to 3.5 cm – where fatal wound 2.2 cm long on skin – sword subsequently measured –assumption put to pathologist incorrect – whether evidence relevant – whether evidence prejudicial – evidence admissible to correct erroneous assumption

PRACTICE AND PROCEDURE – where appeal dismissed pursuant to self-executing order for failure to comply with procedural direction – where application to extend time for compliance after expiry of time – whether satisfactory explanation for failure to comply with direction – whether appeal devoid of merit – no issue of principle

DUST DISEASES – damages – apportionment between joint tortfeasors – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 – injured worker previously received statutory workers’ compensation payment – insurer entitled to first charge on recovered damages under Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 207B – whether primary tortfeasor entitled to recover contributions from joint tortfeasors in circumstances where insurer entered into agreement with injured worker to pay worker 20% of amount recovered from primary tortfeasor WORDS AND PHRASES – “double compensation” – whether agreement between injured worker and insurer whereby insurer pays worker 20% of damages recovered from tortfeasor constitutes double compensation in circumstances where worker had received statutory compensation payment WORKERS COMPENSATION – whether agreement that insurer pay worker 20% of recovered damages valid in circumstances where worker had received statutory compensation payment – whether insurer permitted to waive its right to enforce statutory charge on recovered damages under Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 207B

CORPORATIONS — Voluntary administration — Deed of company arrangement — Application under s 444GA of the Corporations Act 2001 (Cth) for leave to transfer shares pursuant to deed – whether residual equity in company – whether shareholders unfairly prejudiced

CIVIL PROCEDURE – application for summary dismissal of proceedings – misconceived attempt to enforce a charity to perform the functions of the Employment Secretary – no reasonable cause of action disclosed

CRIMINAL PROCEDURE – directed verdict – jury directed to return a not guilty verdict for murder

EVIDENCE – admissions – admissions made in the course of violent relationship between partners, each of whom is an accused – evidence tendered against male accused as admissions – objection taken to admissions against female accused who was subject to violence – s 84 of the Evidence Act 1995 is not limited to questioning or conduct perpetrated for the purpose of obtaining admissions – s 84 of the Evidence Act applies to violence perpetrated – as a matter of fact in this case the making or content of the admissions are not influenced by the violence.

COSTS – estate litigation – contest for administration of deceased’s estate between a claimed de facto partner of the deceased and sibling of the deceased - deceased’s sibling successful – family provision proceedings heard at the same time – plaintiff fails in claim she was the de facto spouse of the deceased – plaintiff succeeds in obtaining a legacy of $75,000 from a small estate of approximately $350,000, together with claimed notional estate of $411,000 – whether the defendant administrator was successful on the dominant issue in the proceedings – whether the plaintiff should pay her own costs of the proceedings – whether the plaintiff’s costs should be capped – how should the principle of proportionality be given effect with respect to the plaintiff’s costs - what costs order should be made in the circumstances – what notional estate contest remains.

CORPORATIONS – external administration – winding up – winding up in insolvency – creditor’s statutory demand – whether presumption of insolvency may be relied on where non-compliance with statutory demand occurs after institution of winding up proceedings – held, it can. TAXES AND DUTIES – whether a winding up proceeding is a proceeding to recover an amount of a tax-related liability under (CTH) Taxation Administration Act 1953, Sch 1, s 255-45(1) – held, it is. CORPORATIONS – external administration – winding up – winding up in insolvency – actual insolvency – where existence of unpaid taxation liabilities proven – where many defendants owe employee entitlement debts – where many unrelated statutory demands not complied with – apparent absence of cash of property to meet liabilities – held, relevant defendants wound up in insolvency.

CIVIL PROCEDURE — Court of Appeal — Objections to competency of appeal — purported appeal from interlocutory order — leave to appeal not sought — whether order striking out notice of motion is interlocutory — applicant seeks to re-litigate matters — no arguable case — purported appeal dismissed as incompetent on court’s own motion CIVIL PROCEDURE — Court of Appeal — Application — Injunction — not in the interests of justice to restrain trustee in bankruptcy from exercising power of sale

VOLUNTARY ASSOCIATIONS – Associations Incorporation Act 2009 (NSW) s 6(2)(b) and Schedule 2 – meaning of “unincorporated body” – whether an “unincorporated body” must have a constitution or set of rules making provision for membership and voting, and a list or register of members – description of unincorporated bodies given in Kibby v Registrar of Titles [1999] 1 VR 861 applied VOLUNTARY ASSOCIATIONS – Associations Incorporation Act 2009 (NSW) s 39 – “special resolution” – whether the procedure for passing a special resolution prescribed in s 39 is applicable to an unincorporated body not yet registered under the Associations Incorporation Act – meaning to be given to “special resolution” as it is used in s 6(2)(b) of the Act

CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – interlocutory decision – summary dismissal – UCPR r 13.4 – no issue of principle – no question of public importance – no arguable error – application seeks to re-canvass issues which have been finally determined in other proceedings – application dismissed

CRIMINAL LAW – Appeal – Sentence – Parity principle – Where applicant pleaded guilty to a series of robbery and related offences – Where the applicant was part of a group – Where applicant asserted that the sentencing judge did not have proper regard to principles of parity and overlooked aspects of the applicant’s subjective case including his progress towards rehabilitation – Where the same judge had sentenced all offenders and had made specific reference to parity principles – Where differing sentences explicable on the basis of differing subjective features

CRIMINAL LAW – sentence appeal – ongoing supply of a prohibited drug – supply prohibited drug – unauthorised possession of firearms in circumstances of aggravation – delay in proceedings due to applicant’s flight - assessment of utilitarian value of plea of guilty – relevance of possession of firearms to assessment of gravity of drug offences – offences on a Form 1

CRIMINAL LAW – sentence – application by offender for leave to appeal – child pornography offences – whether sentence unreasonable or plainly unjust – applicant’s criminality around the mid-range level of seriousness – early plea demonstrated genuine remorse – Court could not confidently find that there was a low risk of re-offending –hardship suffered by the applicant’s family taken into account – whether sentence was outside the appropriate range for the criminality of the offence – whether the sentence reflected the applicant’s subjective case – comparable cases or statistics do not support a conclusion that the applicant’s sentence was manifestly excessive

CORPORATIONS — Scheme of arrangement — Application for order convening meeting of members to consider scheme of arrangement – where scheme would amalgamate two not-for-profit companies limited by guarantee – where some members of proponent also members of other amalgamating company – whether members should vote in classes.

COSTS — Party/Party — General rule that costs follow the event – where First–Third Defendants changed factual substrate of proceedings before hearing – where Plaintiffs unsuccessful – proper order as to costs incurred before change – whether Sanderson order should be made against First–Third Defendants

PROCEDURE — Judgments and orders — Amending, varying and setting aside – Application to vary orders – whether orders made under misapprehension of fact

CRIMINAL LAW – evidence – tendency and coincidence evidence – where evidence has significant probative value CRIMINAL PROCEDURE – severing of the Indictment – whether jury likely to be overwhelmed by size of Indictment and length of trial – whether in the interests of justice to sever Indictment

TORTS – battery – assault – where police used significant force in arresting plaintiff – where arrest said to be wrongful at common law and under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether primary judge erred in preferring police evidence over contrary evidence of plaintiff – whether primary judge erred by failing to provide adequate reasons for preferring police evidence – whether primary judge erred in finding that police officers identified themselves as police and that communicating required information was otherwise impracticable

CRIME – appeals – sentence – non-parole periods –federal offences – whether sentencing judge erroneously applied requirement under State legislation of ‘special circumstances’ in determining applicant’s non-parole period

CRIMINAL LAW – appeal against sentence – murder – whether sentencing judge erred in the assessment of the applicant’s prospects of rehabilitation – whether error in the sentencing judge’s assessment of a psychiatric condition – whether error in the sentencing judge’s findings that the offence was committed for no reason other than to serve some irrational purpose known only to the applicant and there was no conclusive explanation for the applicant’s heinous conduct – whether sentencing manifestly excessive

PROCEEDS OF CRIME – application for restraining order – requirement for due process where interested party a self-represented prisoner awaiting result of application for grant of legal aid

PRACTICE or PROCEDURE – transfer of proceedings from District Court to Supreme Court – amount of damages to be recovered, if successful, likely to exceed $750,000 – whether Court has power to immediately transfer proceedings back to District Court – whether abuse of process to do so – held – no power to transfer proceedings back to District Court

COSTS — Party/Party — Costs orders in interlocutory proceedings — where interlocutory relief would reduce ultimate loss to Plaintiff – whether Plaintiff’s costs should be its costs in the cause – reduction to costs order where Plaintiff partly unsuccessful COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – whether unreasonable for Plaintiff not to accept Sixth Defendant’s Calderbank offer

CIVIL PROCEDURE — Subpoenas — Application to set aside — where subpoenas partly overlap with earlier applications for discovery – whether subpoenas have legitimate forensic purpose

TRAFFIC LAW AND TRANSPORT – Motor Accidents Compensation Act 1999 (NSW) – judicial review of s 94 certificate – challenge to assessment of future economic loss – adequacy of reasons – whether decision unreasonable – set aside future economic loss component of s 94 certificate – remit for reassessment by another assessor.

COSTS – security for costs – whether costs follow the event – costs of the application

EQUITY – Equitable remedies – Injunctions – Whether applicant can obtain interlocutory injunction restraining the board of the defendant company from imposing disciplinary sanctions on her

CRIME – Proceeds of Crime Act 2002 (Cth) – proceeds of crime – application for restraining order – custody and control orders – ancillary orders – orders made

ADMINISTRATIVE LAW – appeal – consent to uphold appeal – operation of s 30(1A) of the Children Protection (Working with Children Act) 2012 (NSW) – requisite satisfaction – failure to address legislative requirements before making orders – appeal allowed – remitter

ADMINISTRATIVE LAW – whether procedural fairness excluded by Police Act 1990 (NSW) for non-reviewable action against police officer – content of procedural fairness – identity of those providing incriminating evidence protected by s 169A of Police Act – sufficient to put gist of allegations to the police officer and invite response STATUTORY INTERPRETATION – meaning of word “complainant” in Police Act – extends to any person who provides written document to senior police officer concerning adverse conduct of a police officers – importance of preferring interpretation that would enhance purpose of provision – strong legislative intention to prevent reprisals

SUCCESSION – Wills, Probate and Administration - Family Provision – summons filed outside limitation period – whether sufficient cause shown for Court to make orders extending time for plaintiff’s application for family provision order SUCCESSION – Wills, Probate and Administration - Family Provision – notional estate order sought - estate partly distributed – moveable property in the UK – real estate in Australia SUCCESSION – Wills, Probate and Administration - Family Provision - whether provision should be made for son out of deceased father’s will when no provision expressly made – whether there was an estrangement between father and son – impact of estrangement upon provision – needs of parties considered