Cases and authorities

APPEALS – leave to appeal – leave sought to appeal against District Court order adjourning ongoing proceedings – futility of challenge to effected adjournment – whether applicant’s waste of costs sufficient basis for grant of leave – whether appropriate to grant leave

EXPERT EVIDENCE – claim for damages for psychiatric injury due to alleged sexual assault – request on behalf of first defendant that plaintiff submit to examination by a psychiatrist – where plaintiff has already submitted to examination by a different psychiatrist at the request of the second defendant –risk that plaintiff would be traumatised by further examination – need to balance interests of both parties

PRACTICE AND PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7 - Application by Defendant for dismissal of proceedings - No explanation for Plaintiff's absence – Evidence that Plaintiff aware of the hearing – Proceedings dismissed

Option to renew – waiver of option to renew – relief against forfeiture arising from failure to exercise option to renew – construction of contracts – estoppel – misleading and deceptive conduct – unconscionability – credit of witnesses.

Standing under the Liquor Act 2007 (NSW) – jurisdictional error – nature of a decision – whether decision infected by jurisdictional error.

PRACTICE & PROCEDURE – pleadings – application to strike out statement of claim upon the basis that it discloses no reasonable cause of action – whether pleading capable of being redrawn in proper form

PRACTICE & PROCEDURE – defamation – abuse of process – disproportionate costs – delay – breach of duty imposed by Civil Procedure Act – lack of due despatch – proceedings dismissed.

COSTS – ordinary rule that costs follow the event – discretion to be exercised judicially – defendant was auditor – exceptional circumstances – defendant successful on causation only – defendant found to have breached duty of care and to have issued misleading and deceptive statements by virtue of audit – defence that no relevant duty not reasonably available – also defence of no breach where Court determined significant and serious breach – causation an insignificant aspect of proceedings – no order as to costs.

COSTS – ordinary rule that costs follow the event – costs not punishment or reward but compensation – mediation and agreement on Estate interest issues – defendant acts otherwise than in accordance with agreement reached – no defence to possession reasonably available – defendant occupies premises for first time after successful mediation – unjust for other beneficiaries’ interests in Estate to be reduced – indemnity costs ordered.

CRIME – appeal – leave to appeal against conviction – applicant convicted of indecent assault, acts of indecency and sexual intercourse with a child – whether trial judge misdirected jury in focussing on accused’s evidence and shifted evidentiary onus onto accused – whether trial judge misdirected jury as to significance of evidence of witness contradicting evidence of complainant and erred in formulation of Markuleski direction – whether verdicts unsafe and unsupportable on the evidence under Criminal Appeal Act 1912 (NSW) s 6(1)

APPEAL – appeal against conviction – error in admitting evidence of admission EVIDENCE – admissions – criminal proceedings – official questioning APPEAL – appeal against conviction – error of law – whether substantial miscarriage of justice APPEAL – appeal against sentence – error of law – characterisation of victim as “vulnerable” – whether taking money an inherent aspect of robbery in company APPEAL – appeal against sentence – exercise of re-sentencing discretion

DEFAMATION – action brought by corporation – whether corporate plaintiff adequately specified basis for contention that it has standing to sue – requirement under s 9 of the Defamation Act to establish that the corporation employs fewer than 10 persons – second plaintiff having eight full-time, one part-time and two casual employees whose average hours equal 97% of 10 full-time employees – company director (the first plaintiff) not included in that calculation – application for further particulars with verification

DEFAMATION – objections to imputations – no question of principle

DEFAMATION – interlocutory injunctions – where defendant consented to interlocutory orders restraining publication of certain representations –defendant unrepresented – defendant seeking to have orders varied so as to permit discussion of nature of claim brought against him for purpose of raising funds to defend the claim – whether application should be dismissed in limine – desirability of obtaining pro bono legal assistance to argue defendant’s application

CIVIL PROCEDURE — Summary judgment

Civil Procedure – insurance claim – critical illness benefit – medical records from hospital overseas – subpoena – international comity – Uniform Civil Procedure Rules 2005 (NSW), r 2.1 – order for execution of power of attorney

LOCAL COURT APPEAL – agreement for the supply of coffee – agreement for the hire of a coffee machine – customer repudiated the agreements – supplier sued for amounts owing under agreements and outstanding rental payments and price payable for minimum amount of coffee for remainder of term of contract – whether quality of coffee supplied in accordance with terms of contract – whether supply contract subject to a three month probation period – whether clause enabling recovery of price payable for minimum amount of coffee for remainder of term of contract was a penalty – whether clause enabling recovery of rental payments for coffee machine for term of agreement was a penalty – challenge to credit finding on appeal to Local Court – no question of law raised in making credit finding – error of law on part of presiding Magistrate in determining whether contract subject to a probation period – leave granted to raise question of law and fact – held supply contract not subject to probation period – presiding Magistrate erred in addressing whether contractual clauses were penalties – leave granted to raise question of law and fact to enable that to be determined – whether the clause requires the payment of a sum “out of all proportion” to the protection of the legitimate interests of the non defaulting party – whether the totality of the circumstances suggests that the only, or at least predominant, purpose of the clause is to punish the defaulting party – Held clause in supply contract was a penalty – clause in loan contract for hire of coffee machine not a penalty – parties directed to bring in proposed orders to give effect to Court’s reasons.

Costs – no hearing on the merits – consent to dismissal of proceedings – proceedings unnecessary due to actions of third party – success in substance in proceedings – unreasonable conduct – costs lie where they fall

CIVIL PROCEDURE – interlocutory application – application for transfer under s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – consideration of “the interests of justice” – where plaintiff suffered personal injury – collision with cow on roadway in course of employment – whether Supreme Court of Queensland “more appropriate” to hear the dispute – consideration of connecting factors – application dismissed COSTS – interlocutory application – application for transfer under s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – defendant argues for costs in the cause – plaintiff argues that costs follow the event – the ordinary rule that costs follow the event applied

CIVIL – application pursuant to s 140 of the Civil Procedure Act 2005 (NSW) to transfer proceedings to the Supreme Court – where plaintiff contends that damages awarded may exceed jurisdictional limit of the District Court – application opposed by defendant – summons dismissed

CRIMINAL LAW – sentence – gangland violence – gun violence – Brothers for Life – spate of shootings arising out of “war” with rival chapter of BFL – “I’m at war” – wanton lawlessness – manslaughter where jury accepted excessive self-defence – hit list – series of attempted murders – shooting in or near people’s homes and in public places – multiple victims – “how hard is it to shoot somebody?” – harebrained plan – shootings in peoples’ homes – shootings in public places – multiple victims – whether maximum penalty appropriate – mitigating features – where offenders scarred by exposure to violence in Afghanistan – psychiatric impact CRIMINAL LAW – sentence – cold blooded contract killing – whether life sentence without parole appropriate – whether two stage test required by statute – where moral culpability reduced by evidence of traumatic and dislocated childhood experience and evidence of psychiatric conditions – community interest in community protection – where lengthy determinate sentence may be effective life sentence – where offender not eligible for release to parole until his mid-seventies – life sentence not the only way community interest can be met CRIMINAL LAW – sentence – mitigating features – onerous conditions of incarceration – when capable of being taken into account on sentence – evidence of classification – designation as extreme high risk inmates – grounds upon which decisions as to classification are made – segregation – lack of human contact – whether offenders authors of their own fate – whether double punishment – correct approach to issue – whether prediction can be made as to future conditions – courts reluctance to interfere with management of prisons – offender’s evidence accepted – conditions unduly onerous – in circumstances relevant to length of sentence CRIMINAL LAW – sentence – contempt in the face of the court – refusal to answer question – refusal to nominate co-offender – where offender concerned he will be labelled a “dog” – where offender fearful of reprisal – act of violence in the dock in the presence of judicial officer – act calculated to intimidate and injure co-accused – co-accused running case of duress – serious example of contempt – consecutive sentences appropriate

FAMILY LAW – Family Law Act 1975 (Cth) – whether agreement constitutes “binding financial agreement” within the meaning of the Act. JUDGMENTS AND ORDERS – motions – application to set aside freezing order – motion dismissed

Contracts – indemnity for liabilities and expenditure incurred in legal proceedings – “admission” by affidavit in proceedings – variation of contract – consideration – intention to create legal relations – construction – ambiguity Civil Procedure – default judgment – Uniform Civil Procedure Rules 2005 (NSW), r 16.6 – “debt or liquidated claim” – claim for contractual indemnity – contractual basis not adequately pleaded – quantum not established as a matter of calculation from pleadings – discretion – related claims against other defendants

APPEAL - appeal from Local Court – where magistrate dismissed charges pursuant to s 32(3)(b) Mental Health (Forensic Provisions) Act – where order in terms that the person attend a psychiatrist/psychologist – “specified” in s 32(3)(b) requires that a magistrate name a particular place or a particular person – consideration of giving effect to the enforcement provisions and the object and purpose of Part 3 of the Act – appeal allowed

HIGH RISK OFFENDER – high risk violent offender –preliminary hearing – application for interim detention order – application for interim supervision order – where offender opposes interim detention order – where offender consents to interim supervision order – proper approach to determination of interim orders – primary object of statute to ensure safety and protection of community

TORTS – appeal – negligence – duty of care – liability – whether causation could be concluded from higher risk of harm that appellant fell from stairs rather than landing – no evidence from which it could be inferred that appellant fell from stairs – HELD – no error in trial judge’s factual findings or conclusions

LAND AND ENVIRONMENT – case stated from Land and Environment Court for offence of alteration to building without consent – question of statutory construction – Heritage Conservation Area – definition not to be construed out of the context in which words are found - not independently an element of the offence to be determined by the Court – term used as description of that which is contained in the schedule – schedule adequately prescribes the location and nature of the area – appeal dismissed. ADMINISTRATIVE LAW – appeal on question of law by case stated – construction of primary judge confirmed – appeal dismissed.

CRIMINAL LAW – appeal – evidence – witnesses – in-court identification – whether in-court identification evidence in circumstances where the witness had previously identified the accused required the discharging of the jury – whether direction by trial judge advising the jury to disregard in-court identification was adequate to cure prejudice – no error established EVIDENCE – appeal – absence of DNA evidence – where counsel invited the jury to draw an exculpatory inference from an absence of DNA evidence – whether trial judge erred in directing the jury to treat the absence of DNA evidence as neutral – no error established CRIMINAL LAW – appeal – conviction – assault occasioning grievous bodily harm – whether conviction unreasonable and unsupported by the evidence – discrepancies in identification evidence – evidence of another person making an admission – verdict of guilty open on the evidence CRIMINAL LAW – appeal – sentence – assault occasioning grievous bodily harm – whether sentencing judge erred in assessing objective seriousness – whether sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – sentence appeal – child sexual assault offences – child abuse material offences – seven counts under s.66A(2) Crimes Act 1900 – victim of s.66A(2) offences was Applicant’s 8-9 year old daughter – two counts under s.91G(1)(a) Crimes Act 1900 involving Applicant filming sexual offences committed against his daughter – one count of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 – aggregate sentence of imprisonment for 26 years and non-parole period of 18 years – claim of failure to give adequate reasons for aggregate sentence – error not demonstrated - claim of error in application of totality principle – whether totality principle involved two limbs addressing objective and subjective considerations – totality principle considered - two-limb approach rejected - no error in application of totality principle - claim that sentence manifestly excessive – aggregate sentence open to sentencing Judge - manifest excess not established - appeal dismissed

DEFAMATION – where Court made interlocutory orders restraining publication of certain material – where defendant filed no defence and claimed no interest in repetition of the defamation – final injunctions granted

DAMAGES – general principles – enquiry as to damages

DEFAMATION – defamatory meaning – whether articles sued on reasonably capable of conveying imputations specified by the plaintiff – repetition of rumour in a gossip column – whether ordinary reasonable reader could only understand the articles to dispel the rumour

CIVIL PROCEDURE – order for summary dismissal – alternative order that statement of claim be struck out CIVIL PROCEDURE – summary dismissal – proceedings are vexatious or oppressive – no reasonable cause of action is disclosed – claim for malicious prosecution disclosed no reasonable cause of action – claim of abuse of process vexatious and oppressive

PRACTICE AND PROCEDURE – Appeal – Costs – Where proceedings brought against the defendant in the Local Court were dismissed by Magistrate – Where an appeal was brought against the Magistrate’s determination – Where it was concluded that the Magistrate had erred – Whether costs should follow the event – Relevance of the fact that the error on the part of the Magistrate was not the fault of the defendant or his representatives

INCOME TAX - taxation debt recovery proceedings - claim for unpaid income tax, administrative penalties and interest charges - bulk of claim not disputed - narrow challenge to claim of $9,549.20 - sum paid by Defendant but allocated by Plaintiff to different area of tax liability - whether Plaintiff entitled to include that sum in these proceedings - Plaintiff entitled to sue for that sum in these proceedings - judgment for Plaintiff in full amount claimed

BUILDING AND CONSTRUCTION – whether sound attenuators designed and supplied by the defendant for the Lane Cove Tunnel Project were defective – BUILDING AND CONSTRUCTION – whether UGLR instructed Trox to repair, modify, replace and/or provide again the defective attenuators – where notices given to Trox were ineffective – CONTRACT – whether UGLR is entitled to recover damages – where Alstom subcontracted to Trox responsibility to design and supply the sound attenuators (Trox subcontract) – where Alstom sold its “Business” and all “Contracts” relating to it to UGLR (Sale contract) – whether Alstom appointed UGLR to be its agent for the purpose of administering and performing the Trox subcontract – whether UGLR had implied actual authority to administer and perform the Trox subcontract – whether UGLR’s conduct was ratified by a deed of assignment – whether Alstom became a trustee of its rights under the Trox subcontract for the benefit of UGLR – CONTRACT – whether after completion of Sale contract Alstom suffered loss compensable in damages by reason of the defects – CONTRACT – whether UGLR incurred costs and expenses – where works were done by related companies – where UGLR has no obligation in relation to the costs and expenses incurred by those companies

SUPERANNUATION – appeal – appeal from a SAS Trustee Corporation decision – eligibility to apply for a certificate of incapacity under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) – right ankle injury

EQUITY – residential property purchased in name of respondent using loan moneys acquired on the application of appellant and respondent siblings – appellant alleged oral agreement that property would be held beneficially in equal shares – entitlement asserted on the basis of an unconscionable denial of interest under Muschinski v Dodds (1986) 160 CLR 583 and/or on the basis of a resulting trust under Calverley v Green (1984) 155 CLR 242 – absence of direct, corroborative evidence – whether primary judge erred in declaring that the appellant had no right, title or interest in the property – whether primary judge erred in preferring the evidence of the respondent and his wife over that of the appellant – whether primary judge erred in giving significance to differences in the interest failing to have regard to documentary evidence that appellant contributed to purchase price – whether primary judge should have accepted that a letter prepared by respondent’s solicitor constituted an “admission” of appellant’s interest

ENVIRONMENT AND PLANNING – Environmental Planning and Assessment Act 1979 (NSW) – whether proposal the subject of development application a “staged development application” under s 83B – whether s 79C applied to application – whether consent authority required to consider “construction-related impacts” of development – whether development consent valid

WORKERS COMPENSATION – employer injured by sugarcane juicing machine while visiting work premises on rostered day off – successful claim for occupiers liability – whether employee's injury in course of employment – injury occurred during an interval – whether employer induced or encouraged the employee to spend the interval at a particular place or perform a particular activity – whether employee's injury arose out of employment – whether a causal connection established between the injury and the respondent’s employment – payments by workers compensation insurer in respect of the injury – undertaking to repay workers compensation – whether double compensation

COSTS – successful appeal - offers of compromise made before first instance proceedings ‑ no offer of compromise made in relation to the appeal proceedings

CONTEMPT – sentencing – fraudulent alteration of court orders – unsuccessful attempt to frustrate administration of justice – where contemnor persistently failed to comply with directions made in the contempt proceedings – plea of guilty following arrest – relevance of comparable cases

SECURITIES – personal properties – registration – priority – purchase money security interest – where not registered within 15-day period – where registered before grantor enters voluntary administration – whether 15-day period can and should be extended – where failure to register within time due to inadvertence – where no prejudice to unsecured creditors – where only secured creditor affected does not seek to be heard in opposition – period extended.

CRIMINAL PROCEDURE – committal proceedings – application for review of Magistrate’s decision refusing to direct witnesses to attend to give oral evidence –where plaintiff sought to explore admissibility of covert recordings – whether Magistrate misconceived the extent of his authority to allow that course – where plaintiff sought to explore mental health and behaviour of complainant – whether Magistrate constructively failed to exercise jurisdiction

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) ss 7(1), 8(1) – request by defendant for an order that the parties be referred to arbitration – arbitration agreement – whether there is an agreement by the parties to submit to arbitration all or certain disputes – where only express reference to arbitration in the parties’ written agreement is in a clause which provides that each party agrees to endeavour to settle the Dispute by mediation before having recourse to arbitration or litigation – HELD – no arbitration agreement.

CONSUMER LAW – misleading or deceptive conduct –agreements executed for purchase of share of property– money paid towards purchase – inaccurate and incomplete explanation of transaction given by defendant to plaintiff – failure to disclose true nature of transaction – where plaintiff had poor command of English and relied on defendant’s explanation of documents – agreements declared void – orders made requiring defendants to compensate plaintiff for loss

JUDGMENTS AND ORDERS – motions – application to set aside order – freezing order – orders by consent – whether there has been a sufficient change in circumstances to justify discharge of freezing order JUDGMENTS AND ORDERS – motions – application for stay of proceedings – whether stay required by the interests of justice

CRIMINAL LAW – costs in criminal cases – certificate under the Act – where Court of Criminal Appeal upholds a ground that a jury verdict was unreasonable and unable to be supported – not sufficient to justify grant of certificate – where evidence of principal Crown witness "very substantially lacking in credit" – whether institution of proceedings unreasonable with the wisdom of hindsight – applicable test – certificate granted – no question of principle.

CRIMINAL LAW – sentence appeal – murder – estranged husband beat wife to death with a metal bar – sentence of imprisonment for 27 years with non-parole period of 18 years – whether sentencing judge correctly considered objective seriousness – whether applicant’s mental impairment and intellectual functioning adequately considered – whether factual findings as to causal connection between offending and mental condition open to sentencing judge – whether actions of offender facilitated the administration of justice – whether sentence manifestly excessive – no error identified – appeal dismissed.