Cases and authorities

CRIME – appeals – sentencing – strong subjective case – where offender sentenced to 12 months’ imprisonment to be served by way of intensive correction order – whether sentencing judge erred in failing to impose a non-custodial sentence CRIME – appeals – sentencing – manifest excess – whether sentence imposed was within the permissible exercise of the sentencing judge’s discretion

Succession — Executors and administrators — Proceedings against executors and administrators — Application to remove executor

CIVIL – damage to motor vehicle while in custody of employees of plaintiff – breach of s 60 of the Australian Consumer Law – whether causation established – whether reasons adequate – whether Magistrate erred in ordering indemnity costs against plaintiff – appeal dismissed

COSTS – indemnity costs awarded against plaintiff who conducted case on an admittedly false basis

TRUST AND TRUSTEES – JUDICIAL ADVICE – charitable trust in a will – proper construction of the will – whether trustee must form opinion that beneficiary shall not in the future apply funds for the charitable purpose within three months of the end of the financial year – whether trustee justified in forming the opinion that beneficiary will not apply income for that charitable purpose

EVIDENCE – admissions – whether oppressive conduct during police interview – where accused refuses to participate – where interview goes ahead regardless STATUTORY INTERPRETATION – s 84 Evidence Act “violent, oppressive, inhuman or degrading conduct” – s 281 Criminal Procedure Act “official questioning” – s 138 Evidence Act “improper” EVIDENCE – admissions – whether in the course of official questioning – whether truth of admission adversely affected – whether unfair to accused – when admissions made after completion of police interview – where no caution given – where accused believed remarks were “off the record” EVIDENCE – admissions – to undercover officer – whether unfair to accused – whether improper or oppressive – whether truthfulness adversely affected – whether voluntary – where undercover officer invoked the spirit of accused’s recently deceased partner to encourage the accused to make disclosures

CORPORATIONS — Membership — Status of membership – where companies passed resolution for voluntary winding up in general meeting – where administrator of estate of deceased member convened and voted by proxy at meeting – whether administrator relevantly “member” of companies – whether resolution validly passed and liquidators validly appointed – whether steps taken should be validated by Court

EVIDENCE – application to cross-examine by Crown in re-examination under s 38 of the Evidence Act 1995 – whether matter arises – leave under s 39(b) of the Evidence Act 1995 granted but not to cross-examine.

PRACTICE AND PROCEDURE – where plaintiffs consented to orders that proceedings be struck out for want of prosecution if evidence not filed and served – evidence not filed within time – order sought by plaintiffs to have proceedings reinstated –where no explanation provided for series of defaults by plaintiffs – where defendants have proposed orders to reinstate the proceedings – HELD – orders proposed by third defendant granted to reinstate the proceedings and extend time COSTS – plaintiffs to pay the third defendants’ costs of the notice of motion – costs ought follow the event

PROCEDURE – entry of short minutes of order

CIVIL PROCEDURE – case management hearing

CRIME – appeal – application for leave to appeal convictions for dangerous driving – convictions based on guilty pleas – whether pleas attributable to genuine consciousness of guilt – whether pleas entered without full understanding of consequences – whether miscarriage of justice CRIME – appeal – challenge to conviction based on guilty pleas – whether advice of applicant’s legal representative to enter guilty pleas was imprudent and inappropriate – whether incompetence of counsel resulted in miscarriage of justice

INJURIOUS FALSEHOOD – publication – where plaintiff suing on an email reported to him but able to be located – whether that part of claim should be summarily dismissed – availability of further interlocutory steps

Contracts – summary judgment – dispute between solicitor and client concerning unpaid fees – settlement agreement providing for solicitor’s client to pay barrister – construction – consideration – provision for entry into formal deed – binding nature of agreement – conditions yet to be fulfilled – subsequent conduct of parties – overlap with undetermined issues Civil Procedure – freezing orders – sale of property by related company at alleged undervalue – insufficient evidence of dissipation of assets – continuation of orders against defendant’s property

CONTRACTS – suspension of rights clause – whether catches first defendant’s defence of set-off and cross-claim – CIVIL PROCEDURE – summary judgment – whether arguable defence having regard to proper construction of suspension of rights clause

SENTENCING – manslaughter – unlawful and dangerous act – death of an infant – offender lost control on one occasion and inflicted several head injuries – offender denied facts implicit in jury’s verdict – implications of lack of express remorse – low likelihood of reoffending – relevance of specific deterrence

INJUNCTIONS – foreign defendants – jurisdiction to grant EQUITY – personal orders – in personam – to take effect ‘everywhere in the world’ PROCEDURE – grounds for service outside the jurisdiction – foreign defendants – no voluntary submission – irrelevant to jurisdiction STATUTE – Court Suppression & Non-Publication Orders Act – exercise of discretion

HIGH RISK OFFENDER – serious sex offender – application for interim detention order – earlier application granted – concessions by Defendant – order made

CIVIL PROCEDURE – pleadings – amendment to statement of claim – additional plaintiff – additional causes of action – unexplained delay – failure to clarify case as pleaded – vacation of hearing date

COSTS – notice of motion for further or better discovery – Civil Procedure Act 1005 (NSW) s 98 – Uniform Civil Procedure Rules 2005 (NSW) r 42.1, 42.7 – where the failure of the notice of motion for further discovery is a discrete event for the purposes of r 42.1 – where certain defendants were not required to participate in the hearing of the notice of motion – where certain defendants were in breach of the court’s orders before the notice of motion was filed and served

LAND LAW – conveyancing – options – option to purchase – date of exchange – defendants claim exchange of counterparts occurred using email copy of execution page – plaintiff claims exchange occurred using original counterparts at later time – whether agreed that exchange would occur using email copy of signature page – date of exchange held to be date of exchange of original counterparts LAND LAW – conveyancing – service of notices – whether service on agent valid – whether service by facsimile effective – whether Conveyancing Act 1919 (NSW), s 170 facultative or mandatory

CONTRACT – construction of a deed varying an agreement for the development of a site – whether the variation deed intended to effect a fundamental change in the financial arrangements between the parties – necessity to construe the variation deed in context PROCEDURAL FAIRNESS – whether the appellant denied procedural fairness by entry of judgment on the respondent’s cross-claim – whether determination of separate questions on liability left issues of quantum unresolved

ADMINISTRATIVE LAW — Hearings — Procedural fairness — whether applicant withdrew from hearing or withdrew from appeal — whether applicant denied procedural fairness ADMINISTRATIVE LAW — Jurisdiction — Inherent jurisdiction — discretion to refuse prerogative relief — length of delay — whether in the best interests of the child CIVIL PROCEDURE — Court of Appeal — Application — summons for judicial review — extension of time to commence proceedings — raises questions of general importance — extension of time granted CIVIL PROCEDURE — Representation — Unrepresented litigants — Assistance of court — scope of court’s obligation to assist unrepresented litigants CIVIL PROCEDURE — Registrars — Powers of Registrar — power to waive, postpone and remit fees FAMILY LAW AND CHILD WELFARE — Child Welfare under State Legislation — children in need of protection — amendment to care plan under Children and Young Persons (Care and Protection) Act 1998 (NSW) — whether amendment to care plan in absence of applicant gave rise to procedural unfairness

APPEAL – application for leave to appeal – judgment below was an appeal from a Local Court magistrate limited to questions of law – no issue of principle, question of general importance or injustice which is reasonably clear – legal costs incurred disproportionate to amount in issue

CRIME – application for leave to appeal – interlocutory application – application for a permanent stay of proceedings – where applicant was compulsorily examined at the Australian Crime Commission before being charged – where impropriety on behalf of investigating police officers – whether irremediable prejudice occasioned to the applicant – whether impropriety rendered the proceedings an abuse of process

CRIMINAL LAW – sentence appeal – knowingly take part in the supply of not less than the commercial quantity of cannabis leaf – offenders sentenced on basis of erroneous agreed facts as to amount of cannabis involved – need to re-sentence – no difference in the role of each offender – significant difference in the subjective cases of the offenders – in the case of one offender, no lesser sentence warranted – in the case of the other offender, appeal allowed and sentence reduced.

CIVIL PROCEDURE — Hearings — where Plaintiffs seek urgent final relief in respect of creditors meetings – where meeting may render relief inutile – whether Plaintiffs should be required to seek interlocutory relief and give undertaking as to damages – when proceedings should be listed for hearing.

EVIDENCE – shooting murder – where former co-accused acquitted by the Court of Criminal Appeal – where evidence of words said by that person in presence of both accused and evidence of telephone calls to and from that person sought to be led in Crown case – whether evidence relevant – whether evidence ought to be excluded under s 137

FAMILY LAW AND CHILD WELFARE — Adoption – whether child of Aboriginal descent – whether consent of child’s birth parents should be dispensed with – whether order for adoption of child should be made – whether proposed name for child should be approved.

Jurisdiction – Local Court – debt claim – cross-claim invoking Australian Consumer Law, s 237 – conferral of Commonwealth jurisdiction on State courts – Competition and Consumer Act 2010 (Cth), s 138B – “limits” of Local Court jurisdiction – Local Court Act 2007 (NSW), ss 30, 32 – Fair Trading Act 1987 (NSW), s 30 – doubt as to Local Court’s power to grant s 237 relief – transfer of proceedings from Local Court to Supreme Court Jurisdiction – District Court – debt claim – District Court Act 1973 (NSW), s 44(1)(a)(i) – commercial parties – no District Court jurisdiction – cross-claim invoking Australian Consumer Law, s 237 – conferral of Commonwealth jurisdiction on State courts – Competition and Consumer Act 2010 (Cth), s 138B – “limits” of District Court jurisdiction – Fair Trading Act 1987 (NSW), s 30 – District Court Act 1973, s 135 – Civil Procedure Act 2005 (NSW), s 146 – no transfer of proceedings from Supreme Court to District Court

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application for forfeiture orders – exercise of discretion to refuse a forfeiture order – property identified as interest in bank account – chose in action – nature of chose in action – whether chose in action is proceeds of crime – whether chose in action is instrument of serious offence – whether property ceased to be proceeds or instrument of crime – acquisition of property – whether forfeiture order is in the “public interest” CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application for compensation order – property instrument of crime

CRIME – proceeds of crime – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining orders under s 330(4)(a) of the Proceeds of Crime Act 2002 (Cth) – when property which is a chose in action is “acquired” – meaning of “third party” – whether applicants had knowledge of criminality by way of “wilful blindness”

CIVIL PROCEDURE – interlocutory injunction – interlocutory injunction against former employer – application for interlocutory injunction until appeal hearing – where appeal lodged in different jurisdiction – where no proceedings brought in this Court – where proposed proceedings do not give rise to reinstatement

COSTS – Calderbank offers – respondent made a Calderbank offer on terms less favourable to the respondent than the result the respondent obtained by judgment – whether it was unreasonable for the applicants to reject the Calderbank offer – whether the respondent’s costs should be paid by the applicants on the indemnity basis from the day after the date of expiration of the Calderbank offer COSTS – offers of compromise – application of r 42.14 Uniform Civil Procedure Rules 2005 – circumstances in which a court should exercise its discretion to “order otherwise” COSTS – probate actions – exceptions to the principle that “costs follow the event”

TORTS – negligence – duty of care – pure economic loss – reliance – vulnerability –where council as principal certifying authority retained by owner-builder issued occupation certificate under Environmental Planning and Assessment Act 1979 (NSW), s 109D(1)(c) in relation to structurally and non-structurally defective building works on residential property – where subsequent purchaser of property enjoyed benefit of statutory warranties against owner-builder under Home Building Act 1989 (NSW), s 18B – whether council owed subsequent purchaser duty to take reasonable care in issuing occupation certificate – where owner-builder agreed with council that he was responsible for compliance with laws and approvals – whether council liable to indemnify owner-builder due to careless issue of occupation certificate

CRIMINAL LAW – discretionary discharge of individual juror – where juror unable to perform functions of juror due to distraction as a result of family medical issues – whether trial should continue with eleven remaining jurors – relevant considerations – where accused “unequivocally” wishes trial to continue – whether risk of substantial miscarriage of justice

EVIDENCE – documents tendered – documents are Statements to Police by witness – sought to be adduced in re-examination – purpose is to re-establish credit – s 108 of the Evidence Act 1995 – Crown desires that it be used as evidence of the fact asserted – unfair and prejudicial in circumstances that adduced in re-examination – order to limit rise to credit.

EVIDENCE – leave sought to adduce evidence re-establishing credit in re-examination – different operation of s 108(1) and s 108(3) of the Evidence Act 1995 discussed – need to comply with s 39 of the Evidence Act 1995 in re-examination, even on credit; CRIMINAL PROCEDURE – re-examination of witness by Crown – re-establish credit – matter arises – if not, leave granted.

COSTS – proceedings for appointment of trustees for sale of land – proceedings settled at an early stage – agreement that the property be sold – plaintiff claims defendant acted unreasonably in not consenting to sale prior to commencement of proceedings – costs of proceedings to be paid out of proceeds of sale

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – high risk sex offender – offences against sections 66I and 66J of the Crimes Act 1900 (NSW) –application for extended supervision order sought by the State – HELD – matters pursuant to section 9 of the Crimes (High Risk Offenders) Act 2006 taken into account in making an extended supervision order – defendant’s risk of sexual re-offending remains high – supervision required to maintain consistency and routine in offender’s life – risk of drug use connected to offender’s sexual offending unless there is external support and supervision– safety of the community requires that extended supervision order be granted CRIMES (HIGH RISK OFFENDERS) ACT 2006 – conditions of extended supervision order – whether sufficiently certain – reasonableness and relevance to risk posed – presumption that conditions will be enforced reasonably and for a proper purpose – whether condition empowering Departmental Supervising Officer to direct defendant to engage in employment appropriate

HIGH RISK OFFENDER - application to revoke high risk violent offender continuing detention order (CDO) - Defendant detained in Long Bay Hospital under CDO - vacancy available for Defendant in Forensic Hospital - unanimous medical opinion that Defendant ought be treated in Forensic Hospital - order made to revoke CDO to permit transfer of Defendant under Mental Health At 2007 to Forensic Hospital

CRIMINAL LAW – Crown appeal against sentence –thirteen offences laid under ss 66EB(2), 66C(3), 66C(1), 61N(1), 91D(1)(a) Crimes Act (NSW), s 474.27A(1) Criminal Code Act (Cth) – thirteen complainants aged 14 to 16 – manifest inadequacy of sentence – failure to assess objective seriousness – prospects of rehabilitation erroneously assessed – failure to apply totality principle

Criminal law – Appeal – Sentence – Charge of recklessly causing grievous bodily harm – Where applicant struck the victim from behind in an unprovoked attack causing the victim to fall to the ground and lose consciousness – Where victim suffered a number of injuries including a haemorrhagic contusion of the brain, a fracture of the orbital wall and a laceration to the left forehand – Where victim left with permanent scarring, intermittent headaches, flashbacks, nightmares and rapid mood swings – Whether the sentencing Judge erred in his categorisation of the injuries – Whether sentence was manifestly excessive – No error on the part of the sentencing Judge – Necessity to bear in mind that the injury is not the sole determining factor of sentence for this type of offending – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed

CRIMINAL LAW – Appeal – Appeal against sentence – Where applicant pleaded guilty to two counts of sexual offending committed on a pupil whilst he was a school teacher – Where sentencing judge wholly accumulated the two sentences – Where the aggregate sentence imposed reflected a failure on the part of the sentencing judge to have proper regard to considerations of totality – Sentence manifestly excessive – Applicant re-sentenced PRACTICE AND PROCEDURE – Criminal law – Observations as to the inappropriate use of a Form 1 by the Crown

PRACTICE AND PROCEDURE – non-publication order made with exception to permit offenders’ counsel to have access to two decisions of the Victorian Supreme Court for the purposes of the sentence hearing

CRIMINAL LAW – evidence – whether inspection of premises should be conducted – view – statutory criteria – whether jury should be invited to ascend and descend staircase – where at least one member of the jury unlikely to be able to ascend staircase – whether view from above provided better perspective for the purpose of drawing inferences – where Crown alleges accused “staged” falling down the stairs – where Crown says injuries not consistent with fall – vertigo

Trial by judge order – whether judge alone trial properly constituted – whether trial by judge order previously made – implied order

SUCCESSION – executors and administrators – proceedings against executors and administrators