Cases and authorities

SUCCESSION – Testamentary capacity PRACTICE – Taking instructions from persons who may lack capacity – Importance of continuing legal education on the issue of capacity

EVIDENCE – tendency evidence – murder – death of domestic partner of accused – certain tendency evidence admissible – other evidence admissible as relationship evidence

ADMINISTRATIVE LAW – examination of proposal to amalgamate local government areas – mandatory considerations defined by statute – procedural fairness – non-disclosure of documents – whether undisclosed underlying report part of adverse material – whether undisclosed report significant – public interest immunity claimed – confidentiality claimed ADMINISTRATIVE LAW – examination of proposal to amalgamate local government areas – mandatory considerations defined by statute – constructive failure to exercise function – whether undisclosed underlying report precluded proper examination of mandatory consideration LOCAL GOVERNMENT – proposal to amalgamate local government areas – validity of proposal –delegate to examine and report on proposal – failure of Minister to provide access to documents detailing financial advantages of amalgamations – reasonable notice of inquiry – conduct of inquiry – consideration of financial advantages and disadvantages of proposed amalgamation JUDGMENTS AND ORDERS – finding of invalidity of examination and report under Local Government Act, s 218F – remittal to same delegate – whether appropriate for Court to order that further examination and report not be undertaken by same delegate WORDS AND PHRASES – “contiguous” – whether local government areas separated by river “a single area of contiguous land” – Local Government Act s 204(3) – effect of bridge spanning river

OCCUPATIONS – medical practitioners – over-prescribing drugs of addiction – failure to maintain adequate medical records – registration cancelled after findings of unsatisfactory professional conduct and professional misconduct – whether power to cancel registration conditioned on finding that practitioner “probably permanently unfit” to practise – whether fixing a period of time during which an application for re-registration could not be made was an irrelevant consideration – whether Tribunal failed to take into account substantial and consequential evidence STATUTORY INTERPRETATION – implied restriction on statutory power – consistency of proposed restriction with legislative scheme – context provided by legislative history

ASSOCIATIONS AND CLUBS – incorporated associations – members – where applicant seeks to restrain general meeting – where applicant’s case on the merits has seriously arguable case – where significant delay in seeking declaratory relief – where no prejudice if meeting proceeds – held, application for injunction dismissed.

COSTS – plaintiff unsuccessful in application for leave to appeal from interlocutory order in Local Court – reasonable offer made by defendant ­­­– where plaintiff’s conduct contributed to costs incurred by the defendant – costs awarded on ordinary and indemnity basis – gross sum costs order awarded

CORPORATIONS — Winding up — Conduct of liquidation — Application for directions – where two companies settle overlapping claims against third party for global sum – where costs of proceedings borne predominantly by one company – whether liquidators would be justified in allocating settlement proceeds in manner proposed

CIVIL PROCEDURE – interlocutory relief – asset freezing order - ex parte application – whether good arguable case that defendant is in breach of loan deed – where defendant has no other assets in Australia – where defendant resides abroad – where third party holds asset as stakeholder for defendant

TORT – medical negligence – personal injury – incisional hernia repair – severe post-operative infection associated with surgical mesh – primary case in battery – alternative case in negligence – judgment for plaintiff in negligence INTENTIONAL TORTS – battery – whether consent to surgical operation – plaintiff argues no consent to registrar operating – onus of proof considered – White v Johnson considered – Dean v Phung applied – held any mistake as to identity of surgeon did not alter nature and character of act – held that competence of surgeon relevant to negligence not battery – held that act not intentional act done with intent to cause injury for the purposes of s 3B Civil Liability Act NEGLIGENCE – medical negligence - whether reasonable care required use of “negative pressure surgical drains” – whether infection ought to have been diagnosed upon plaintiff’s re-presentation to hospital – held breach of duty of care owed to plaintiff – held breach of defendant causative of damage

CONTRACTS — Formation — Acceptance of offer – whether contract formed only if applicant notified of issuer’s acceptance of application – conduct of parties CONTRACTS — Parties — Privity — Agency – where attorney purports to execute contract pursuant to unregistered power of attorney – whether contract of no effect pursuant to Powers of Attorney Act 2003 (NSW) s 52 – whether power of attorney limited by product disclosure statement – whether Court should order that power of attorney be delivered up for cancellation

DEFAMATION – damages – jury trial – nightclub owner – imputation that she allowed sex on stage – imputation that she was a menace for failing to prevent drink spiking – other imputations not conveyed or substantially true – mitigation – effect of true imputations – reliance on evidence adduced in support of defence of substantive truth – harm to reputation – plaintiff’s evidence of distress addressed both defamatory imputations and other topics – aggravated damages – defence conduct of trial justified – no award of aggravated damages – drink spiking allegation serious – $100,000.00 award

TAXATION – payroll tax – operation of the “grouping of employees” provisions of the Payroll Tax Act 2007 (NSW) – whether trustee of a discretionary trust correctly grouped with another entity – whether object of the discretionary trust deemed to have a controlling interest in the business conducted by the trustee – whether a disclaimer executed by the object purporting to operate retrospectively could affect liability to payroll tax in a previous year – whether a discretionary object can disclaim retrospectively

CRIMINAL LAW – conviction appeal – applicant charged with two offences contrary to s 66A(2) of the Crimes Act 1900 (NSW), i.e. aggravated sexual intercourse with a person under the age of 10 years – jury convict on one count but acquit on the other – conviction dependent upon acceptance of evidence of complainant – single ground of appeal – verdict unreasonable and cannot be supported by evidence – important evidence of complainant in recorded interview inherently unbelievable – important change to complainant’s evidence at trial – reasonable doubt established – appeal allowed – verdict of acquittal entered.

CRIMINAL LAW — application seeking the leave of the Court to retry a person in respect of two charges of murder — respondent to application seeking orders to produce documents comprising legal advice to various Attorneys General — whether legitimate forensic purpose established for production of documents — no such purpose in relation to legal advices — reasons for decisions by Attorneys General relevant — letters setting out reasons should be produced.

CRIME – sentencing – parity principle – applicant’s undiscounted sentence significantly greater than co‑offender’s – whether justifiable sense of grievance – whether appropriate to compare undiscounted sentences – whether evidential differences justified disparity in initial sentences CRIME – sentencing – application of discounts for guilty pleas under Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 when imposing aggregate sentence under s 53A – whether appropriate to apply discount to aggregate sentence or putative individual sentences

CRIMINAL LAW – Appeal – Sentence – Multiple counts of fraud committed by employee over a significant period of time – Whether the sentencing judge erred in failing to apply a discount to reflect the fact that a portion of the monies had been repaid – Whether sentencing judge erred in failing to apply a discount to reflect the applicant’s gambling addiction – Whether sentence was manifestly excessive – Where the sentencing judge had taken into account all relevant mitigating factors – Where asserted errors were not made out – Sentence not manifestly excessive – Leave to appeal granted – Appeal dismissed

CRIMINAL LAW – high risk offenders – high risk violent offender - application for extended supervision order – preliminary hearing – interim order made

CRIMINAL LAW – victims compensation – Victims Rights and Support Act 2013 – victim murdered by being run over by van – application by parents – funeral costs – loss of wages – impecuniosity of defendant – whether relevant consideration – compensation ordered

EVIDENCE – hearsay evidence – murder – death of domestic partner of accused – disputed representations – certain representations admissible

LAND LAW – easements – imposition of easements by Court – stormwater drainage easement associated with development of residential land – whether easement reasonably necessary for effective use or development of the land – effect of easement upon servient tenement – risk of damage caused by easement works – difficulty in carrying out easement works in compliance with conditions of consent – easement imposed

COSTS – security for costs – UCPR 42.21 or s1335(1) Corporations Act 2001 – where evidence from defendant suggests that neither plaintiff would be able to meet an adverse costs order – where plaintiffs have not themselves provided any evidence of their ability to pay the defendant’s costs of proceedings – where the plaintiffs’ financial position is not the result of the alleged conduct of the defendant – whether there has been any delay in the present application – whether the assessment of anticipated costs is reasonable

ADMINISTRATIVE LAW – judicial review – appeal from decision of New South Wales Civil and Administrative Tribunal – Working with Children Check Clearance – Plaintiff’s stepson and daughter make and withdraw allegations that he sexually assaulted them – criminal charges dropped – Plaintiff has significant criminal record and exhibits other antisocial risk factors – Children’s Guardian cancelled Clearance – Tribunal confirmed decision to cancel Clearance – whether Tribunal’s decision so unreasonable that no reasonable Tribunal could have made it – whether Tribunal failed to place sufficient weight on Family Court consent order giving Plaintiff custody of grandchildren – whether Tribunal erred in not finding that allegations did not occur – no error of law demonstrated – summons dismissed

COMMON LAW – Local Court Appeal – Firearms Act – whether magistrate erred in construction of s 4D – whether object claimed to be a children’s toy falls within s 4D(4) – determination of imitation firearm – necessity to have regard to production and identification of object - appeal allowed – decision set aside – remitted back to the Local Court for decision to be made according to law

INSURANCE – disability policy – totally and permanently disabled – insurer’s opinion – not unreasonable INSURANCE – disability policy – insurer not an employment agency – no obligation to obtain labour market analysis

HIGH RISK VIOLENT OFFENDER – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – index offence of wounding with intent to cause grievous bodily harm – history of repeated criminal offending – sentence of imprisonment of 7 years with non-parole period of 5 years and 3 months – question as to duration of order and appropriate conditions – whether electronic monitoring necessary – order made for a period of three years

TORTS – trespass to land – whether entry of police officers authorised by law – six police officers entered house occupied by the respondent without his consent – eight officers entered respondent’s property without consent – officers relied on ss 9 and 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether officers had requisite state of mind to satisfy ss 9 and 10 – whether officers must each individually have state of mind – whether officers can enter to assist other officers engaged in an arrest – circumstances in which state of mind can be inferred STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether each officer must individually have state of mind required under ss 9, 10 and 99 – whether context and purpose indicates that meaning is to be given that is different from or qualifies plain meaning – meaning of “reasonable grounds” STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – relationship between ss 10 and 99 – whether entry to a premises pursuant to LEPRA, s 10 requires a lawful arrest under s 99 – whether s 10 operates as a derivative of s 99 STATUTORY CONSTRUCTION – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 9 – meaning of “breach of the peace” – whether breach of the peace requires actual or threatened violence – whether threat of harm must be to third person

EQUITY – interlocutory relief – whether freezing order should be granted – whether funds deposited with companies in liquidation should be returned – held, interlocutory relief declined.

CIVIL PROCEDURE – mortgages and securities – possession – application for stay of writ of possession – hardship

JURY – in criminal proceedings – juror’s ability to perform the functions of a juror

CIVIL PROCEDURE — Representation — Application by solicitor for leave to file notice of ceasing to act – where client said not to have paid solicitor’s fees – where application made shortly before hearing and not promptly

APPEALS – judicial review – appeal from NSW Civil and Administrative Tribunal Appeal Panel –on question of law only with leave - installation of kitchen – specific performance of contract ordered by Appeal Panel – Appeal Panel gave no concomitant order for Defendant to pay for kitchen upon it being installed – whether denial of procedural fairness by failing to respond to Plaintiff’s applications to amend orders – failure to give reasons – failure to respond to Plaintiff’s substantial, clearly articulated argument – constructive failure to exercise jurisdiction – appeal upheld – matter remitted to Appeal Panel COSTS – Appeal Panel made no order as to costs – s 60 Civil and Administrative Tribunal Act - whether special circumstances shown - whether costs should be awarded because proceedings alleged to have been brought for a collateral purpose – post-judgment conduct irrelevant to costs orders – proportionality – small amount in dispute – whether any reason shown for leave to be granted - leave to appeal refused – no order as to costs

CONTRACTS – damages for breach of contract – separate determination of damages following decree of specific performance of contract for sale of land – delay in completion of contract – claim for damages for increased building costs and lost rental income – date for assessment – whether causation of loss established EQUITY – equitable remedies – equitable damages pursuant to Supreme Court Act 1970 (NSW), s 68 – claim for damages in addition to decree of specific performance – delay in completion of contract – claim for damages for increased building costs and lost rental income – date for assessment – whether causation of loss established

ADMINISTRATIVE LAW – prohibition order sought against Crown Solicitor appearing for the New South Wales Health Care Complaints Commission in the ACT Supreme Court – whether Crown Solicitor had standing to appear – order sought not granted – abuse of process where order sought is in effect the same as an order refused by this Court

MENTAL HEALTH - NSW Trustee and Guardian Act - Protected estate manager - Litigant in person - Appointment of NSW Trustee as manager of so much of the estate as pertains to plaintiff’s right title and interest in ongoing proceedings

PUBLIC ROAD – dedication at common law – unmade road – land described as road in subdivision created before 1906 – acceptance and use by public – maintenance by Council STATUTORY CONSTRUCTION – s224(3) Local Government Act, 1919 – freestanding operation not subject to s327 – not opening or dedication of road STATUTORY CONSTRUCTION – s327 Local Government Act – scope and operation – inapplicable to exercise of s224(3) power ADVERSE POSSESSION – exclusive physical control – intention to possess as against whole world – not established STANDING – entitlement of body corporate to sue – adjoining land

ADMINISTRATIVE LAW – judicial review – generally – s 32 of Mental Health (Forensic Provisions) Act 1990 – whether applicant eligible under s 32 – whether failure to make finding as to jurisdiction – whether denial of procedural fairness

CRIMINAL LAW – application for leave to appeal against sentence – where late plea of guilty to offence of reckless wounding contrary to s 35(4), Crimes Act 1900 (NSW) – where sentence of 2 years, 8 months with non-parole period of 1 year, 4 months – whether judge erred by circumscribing his discretion in relation to length of sentence – whether judge gave primary or determinative significance to standard non parole period of three years – whether judge erred in placing emphasis on specific and general deterrence – whether judge failed to take into account applicant’s mental health issues – whether the possibility of summary disposal should have been taken into account by the judge in mitigation of penalty – whether sentence manifestly excessive.

CIVIL PROCEDURE — Interlocutory applications — Ex parte – No question of principle

CRIMINAL – procedure – whether a reasonable period of time has elapsed since the jury has retired to permit a majority verdict pursuant to Jury Act 1977 (NSW) – consideration of competing factors – time elapsed sufficient to permit taking of a majority verdict

PRACTICE – where order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 (Teoh Order) made – where applicant filed further notices of motion subsequent to Teoh Order – where applicant’s notices of motion seek to re-open matters already decided in judicial review proceedings – where notices of motion otherwise make unfounded allegations of criminal contempt of court – whether applicant had shown cause why the motions should not be dismissed as vexatious and abuse of process. PROCEDURE – vexatious litigants and proceedings – whether orders should be made directing the applicant to show cause why he should not be prohibited from instituting or maintaining proceedings relating to subject matter of present proceeding.

PRACTICE – where applicant has filed notices of motion seeking to re-open matters already decided in judicial review proceedings – where applicant’s notices of motion otherwise challenge jurisdiction and powers of the Court and its administrative arrangements and officers – whether notices of motion should be dismissed as vexatious and an abuse of process. PROCEDURE – vexatious litigants and proceedings – whether orders should be made directing the applicant to show cause why he should not be prohibited from instituting or maintaining proceedings relating to subject matter of present proceeding.

DEVELOPMENT – proposed development of existing building for shop – precondition to grant of consent to development of shop – whether building designed or constructed for purpose of “commercial premises” – “commercial premises” includes “retail premises” – misdirection to ask whether current use of building is for registered club – misdirection to ask whether registered club can be “commercial premises” – whether building designed or constructed for “retail premises” – misdirection to require retail sale “directly to the public” – error not to hold on facts found that existing building designed or constructed for retail premises

PROCEDURE – costs – personal injury proceedings - notice of motion by Defendant for separate hearing on liability – motion withdrawn when availability of hearing dates became known – failure of defendant to enquire about hearing date range when filing motion – whether defendant should pay costs of the motion

PRACTICE – stay of execution pending appeal – appellant had paid undisputed amount of judgment debt – respondent had obtained post-judgment freezing orders – appellant failed to adduce evidence of his total assets and liabilities – inconsistencies in appellant’s evidence of value of assets – respondent had obtained garnishee orders – respondent acknowledged that accounts held by appellant jointly with his wife and mother had wrongly been frozen by banks – respondent undertook to repay all amounts received by it – appellant offered to provide security in respect of a small proportion of judgment debt - respondent asked for whole of unpaid judgment debt to be paid into court, and acknowledged that if that occurred, the freezing orders should be set aside – stay of execution of judgment and garnishee orders granted on terms that appellant pay a proportion of judgment debt into court or into joint account

APPEAL - defendants admitted liability on claim for debt but relied on estoppel based on oral agreement - primary judge accepted defendants’ evidence and made adverse credit-based findings against plaintiff’s witness - whether primary judge failed to have regard to contemporaneous documents - whether primary judge misapprehended evidence said to corroborate oral agreement - whether this Court could give judgment in favour of plaintiff - appeal allowed and retrial ordered.

CRIMINAL LAW – application for leave to appeal against sentence ­– offence of causing grievous bodily harm with intent ­ – HELD – sentencing judge entitled to treat facts in expert reports with caution where no sworn evidence given by the applicant – discount allowed for a plea is a matter of discretion for sentencing judge – no error in discount of 15 per cent allowed by sentencing judge – none of grounds made out

DEFAMATION – where originating process was served outside Australia on a company incorporated in Delaware and having its principal place of business in New York – application to have service set aside - consideration of proportionality – where present action confined to a small number of downloads – where plaintiff has brought multiple actions for defamation in the same court suing on the same or similar imputations – consideration of principles relating to service of process on a foreign defendant

REAL PROPERTY – torrens title – easements

PROCEDURE – application to amend statement of claim – malicious prosecution – where amendments are particulars of an averment relating to a lack of reasonable and probable cause – distinction between particulars and evidence considered – UCPR r 15.4 considered – held that amendment to be allowed