Cases and authorities

CRIMINAL LAW – appeal against sentence – enter with intent to commit offence of intimidation – assault occasioning actual bodily harm – assault with crow bar in victim’s home – whether sentence manifestly excessive – where applicant suffering severe psychiatric condition – schizophrenia -– relevance of statistics and outcomes in other cases – sentence high but not plainly wrong or unjust

SPECIFIC PERFORMANCE – Contract – Independent contractor to insurance business –Enforcement of obligation to deliver up confidential information – No issue of principle

PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - order made in 2016 for possession - writ for possession of land issued - short-term stay of execution of writ granted to tenant on health grounds - application by tenant for further stay of proceedings - application by corporation to be joined as party to proceedings - claim that corporation was party to unregistered contract for sale of property from Defendants executed in December 2014 - application by corporation to be joined as party to permit a claim for equitable relief to be brought against Plaintiff - proposed claim for equitable relief appears tenuous - in any event claim for equitable relief appropriate to be prosecuted in separate proceedings - Plaintiff has proceeded upon its registered mortgage and obtained order for possession from Court - Plaintiff’s clear legal right to possession of property - no basis demonstrated for joinder to Plaintiff’s Possession List proceedings - no basis demonstrated for extension of stay - Notices of Motion of both tenant and corporation dismissed with costs

PROCEEDS OF CRIME – application for unexplained wealth order – application for assets forfeiture order – reasonable suspicion of serious crime related activity – no evidence served by defendant to explain wealth – no public interest grounds to refuse order

COSTS – costs of the cross claim under s 151Z Workers Compensation Act

EQUITABLE REMEDIES – declaration – proper contradictor – vesting order to give effect to declaration

EQUITY – fraudulent misrepresentation – rescission at law and in equity – restitutio in integrum – basis on which orders may be made to achieve “practical justice” FRAUD – difference between fraud at common law and in equity – obligation to plead fraud with specificity – obligation to confront witness in cross-examination – inability to make findings of fraud consistent with but going beyond case advanced at trial – whether “fraud unravels all” – discretionary considerations attaching to rescission for fraudulent misrepresentation RESCISSION – property development agreement – Deed of Settlement between two shareholders – one shareholder agreed to purchase interest of other shareholder – purchaser failed to pay purchase price – purchaser alleged she had entered into agreement by reason of other shareholder’s misleading and deceptive conduct – primary judge found fraud and set aside part of Deed – appeal allowed, orders set aside and retrial ordered

CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of “ice” – where offender a juvenile – where offender’s upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender’s remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender’s deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles

PROCEDURE – adjournment application – where plaintiff sought adjournment on medical grounds – applicability of overarching purpose provisions in Civil Procedure Act 2005, ss 56-58 – consideration of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 – insufficient evidence to prove medical justification for adjournment application – substantial delay caused by plaintiff in interlocutory stages of proceedings

COSTS – whether costs should follow event – whether costs should be apportioned – no question of principle

Application for orders under the Proceeds of Crime Act 2002 (Cth)

Orders under the Proceeds of Crime Act 2002 (Cth) – Extension of time to comply with orders under s 39(1)(ca) of the Act

COSTS – proceedings for appointment of trustees for sale of real property – whether appropriate that costs of both parties be paid out of the proceeds of sale.

CORPORATIONS – Winding up – Liquidators – Application by liquidator under Corporations Act 2001 (Cth) s 473(b)(ii) to determine remuneration – where additional work not anticipated at time of creditors’ prospective approval of remuneration – whether work performed by liquidator was reasonably necessary

PROCEDURE - miscellaneous procedural matters - vexatious litigants and proceedings – application for summary dismissal on basis that proceedings constituted an abuse of process – whether primary judge erred in determining summary dismissal application before determining other motions before it APPEAL AND NEW TRIAL - appeal - general principles – preservation of appeal - whether open to the respondent to file an application for leave for appeal in order to preserve its rights once other motions before primary judge have been determined – leave refused without prejudice to respondent’s entitlement to re-agitate summary dismissal motion after the disposition of other motions

CRIMINAL LAW – appeal against conviction – sexual assault – Crown case largely based on testimonial evidence of complainant of numerous assaults – inconsistent verdicts – jury convicted on three counts and acquitted on remaining counts – one of the counts of which appellant was acquitted was alleged to have occurred on same occasion as two on which he was convicted – whether acceptable explanation for the differentiation as a matter of logic and reasonableness – other evidence in Crown case corroborated the counts on which the applicant was convicted – whether trial judge erred in admitting evidence that appellant had admitted to some (unspecified) charges brought against him – whether trial judge failed adequately to direct jury – appeal dismissed CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – challenge confined to term of non-parole period – no error established

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – where children in care of approved carers with whom they have an established relationship – held, in children’s best interests to make consent dispense order so as to allow adoption order be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration to birth parents not proposed – where placement with applicants well-established and beneficial – where birth parents have remained committed to children – where limited relationship with birth siblings – where children identify with proposed adoptive family – where adoptive parents are committed to supporting birth parent contact – held, making of the adoption order clearly preferable to any other order that could be made with respect to care of children. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – registration – where provisions are agreed between parties – held, plan registered.

CRIMINAL LAW – assault – defence of lawful correction – onus of proof – standard of proof – whether onus is on prosecution to prove lack of lawful correction – where magistrate treated defence as element of offence – error of law – whether defence must be raised by accused – error of law conceded by respondent – appeal allowed COSTS – application under Suitors Fund Act – application for indemnity certificate – where appeal allowed on error of law

Judicial Review – notices to produce – discovery – plaintiff’s horse trainer licence not renewed – plaintiff seeks judicial review of non renewal and revocation – grounds of review include unreasonableness and improper purpose – allegation that decision maker motivated in part to punish plaintiff for pursuing workers compensation claim against first defendant – discovery sought of documents received by decision maker concerning that claim – material before decision maker discoverable even absent claim of improper purpose – discovery of material concerning other trainers whose licences are not renewed- discovery allowed.

PRACTICE AND PROCEDURE – whether to appoint a single expert – where Respondent had extensive time to investigate the issues – where there is a reasonable prospect of achieving a significant saving in time and cost – Uniform Civil Procedure Rules 2005 (NSW) Pt 31, Subdiv 4.

COSTS – unsuccessful application for leave under s 6(4) of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) against multiple insurers – whether plaintiffs should pay each insurer’s costs – whether plaintiff should pay only one set of costs

ADOPTION – application for adoption by foster carers – where birth mother opposed adoption – where birth mother did not seek to disturb current placement of children – where birth mother contended that an order for permanent placement of children with applicants sufficient to promote children’s interests – where birth mother anticipated possible restoration of children to her care – where no realistic prospect of restoration – where children have expressed wish to be adopted

DEFAMATION – five articles being publications relating to pleadings in contract alleging breach of duty and cruelty – standing of corporation to sue accepted – s 28 Defamation Act 2005 (NSW) – pleadings public documents – fair summary, except Poster – liability of defendants for damages arising from Poster – damages to be assessed

REAL PROPERTY – mortgages and charges – equitable charges and liens – where joint venture deed acknowledges that plaintiff has caveatable interest – whether terms of deed support implication of grant of equitable charge – whether deed frustrated or vitiated by illegality – declaration of equitable charge made EQUITY – equitable remedies – injunctions – where plaintiff seeks injunction restraining registration of plan of sub-division without written agreement – whether terms of injunction would be inconsistent with operation of deed – grant of injunction not appropriate

CIVIL LAW – application pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) – high risk forensic patient – final hearing – application for extension order – application not opposed in principle – question regarding period of supervision – order made

SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Whether order should be made granting plaintiff a fee simple interest in the family home and a lump sum – Where order sought by plaintiff amounted to claim for approximately 60% of the estate – Where plaintiff had three sisters also in need of provision. SUCCESSION – Family provision – Appropriate form of family provision order – Where plaintiff was one of four children of the deceased – Where plaintiff’s sister is executor of the deceased’s estate – Where plaintiff’s other two sisters brought and settled claims for family provision – Where settlement agreement provided for the three sisters to split the estate in agreed percentages following the resolution of the plaintiff’s claim for family provision.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – applications under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and if thought fit to agree to proposed schemes of arrangement – whether primary judge erred in finding that the secured creditors could be placed in the same class for the purposes of voting on proposed scheme of arrangement – whether primary judge misapplied the authorities relating to the composition of separate classes in respect of schemes of arrangement – whether primary judge erred in failing to hold that the differences in rights between the secured creditors made it impossible for them to consult together with a view to their common interest

APPEAL – application for leave to appeal – interlocutory ruling on client legal privilege – one appeal already dismissed – no issue of principle – leave refused

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – progress payments scheme – requirement of valid reference date under contract – date of practical completion – whether payment claim valid CONTRACTS – construction of contract – meaning of “date of practical completion” – whether practical completion dependent on building superintendent’s opinion, or objective existence of state of facts – whether “date of practical completion” is the date of certificate of completion

CRIMINAL LAW – sentence appeal – offence of s 154(1)(a) of the Crimes Act 1900 (NSW) – offence of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) – offence of s 112(2) of the Crimes Act 1900 (NSW) – whether the sentencing judge erred in failing to take into account the applicant’s mental condition in assessing the moral culpability of his offending or in moderating the weight to be given in general deterrence – principles relevant to leave to appeal – substance of ground not raised before the sentencing judge by applicant – lack of merit as to ground of appeal – leave to appeal refused

CRIMINAL LAW - appeal against sentence - whether the sentencing judge failed to give an adequate discount for the plea - whether the sentence was disproportionate to the applicant's role in the offence - whether the judge erred in assessing the objective seriousness of the offending - leave to appeal refused

HIGH RISK OFFENDERS – application for interim supervision order – dispute as to appropriate accommodation – where proceedings listed for final hearing on a date before the defendant’s release date – desirability of reserving determination of dispute for determination by trial judge if necessary

PRACTICE AND PROCEDURE – Where plaintiff sought to discontinue proceedings – Where discontinuance was sought on terms – Whether terms appropriate – No point of principle

CRIMINAL LAW – applicant convicted at Local Court – appeal to District Court dismissed – application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 in 2012 refused – further application for review based on fresh evidence – no doubt or question as to guilt raised by the fresh evidence

VEXATIOUS PROCEEDINGS – policy and principle

PROCEDURE – pleadings – statement of claim – professional negligence – accountant’s negligence – failure to plead sufficiently what would have comprised “competent taxation advice”

APPEAL – Local Court – Breach of contract – Appeal as of right on a question of law – whether question of law or fact – whether question of mixed law and fact – no error of law. CONTRACTS – general contractual principles – construction and interpretation of contracts – meaning of punctuation mark – meaning of forward slash – whether interpretation of punctuation in a clause in a contract is a question of law.

ADMINISTRATIVE LAW – judicial review – generally – Motor Accidents Compensation Act 1999 Part 3.4 certificate – Nguyen principle – whether the assessor considered referred pain and resulting reduced range of motion – whether assessor provided adequate reasoning for his findings of lack of impairment – adequacy of reasons – summons dismissed

WORKERS COMPENSATION – worker injured by exposure to dust – surviving spouse dependent upon worker – whether surviving spouse wholly or partially dependent on worker immediately before worker’s death – primary judge disregarded spouse’s receipt of federal age pension and found spouse wholly dependent – appeal allowed and matter remitted – Workers’ Compensation (Dust Diseases) Act 1942 (NSW) s 8(2B) considered

APPEAL – insurance – failure to assess inmate of a correctional centre for risk of self harm – whether claim falls within the terms of the policy

CONTRACT – whether binding agreement in existence – whether binding agreement was contained in correspondence between parties – whether parties’ intention was to be bound prior to execution of deed of release – whether case fell within first or fourth category recognised in Masters v Cameron – relevance of the language used by the parties – relevance of term as to confidentiality – relevance of time period for taking steps pursuant to agreement CONTRACT – whether binding agreement in existence – whether binding agreement was contained in correspondence between parties – whether agreement incomplete – whether term as to confidentiality agreed – relevance of term as to confidentiality AGENCY – whether solicitor had ostensible authority to bind client to a contract – whether agreement was in the context of litigation – whether solicitor had been held out as having authority to enter into a binding agreement – language used in correspondence between parties

APPEAL – RESTITUTION ‑ where appeal successful – notice of appeal did not seek restitution - application for order of restitution – slip rule - whether appropriate to order interest payable on the repayment amount

APPEAL – COSTS – whether trustee entitled to indemnification out of the trust property – where appellants did not seek judicial advice before embarking on the appeal COSTS – whether successful respondent on the appeal is entitled to costs on an indemnity basis – where appellants were refused leave to amend their notice of appeal

CRIMES (HIGH RISK OFFENDERS) ACT 2006­­ ­­­­­­­ – high risk sex offender – interim supervision order sought –­ order for appointment of experts to report to Court sought – ­ matters to be taken into account in making an extension supervision order pursuant to section 9 – HELD – matters alleged in the supporting documentation tendered would if proved justify the making of an extension supervision order – HELD ­ order made appointing qualified experts to examine the defendant and report to the Court – ­HELD – ­ interim supervision order not appropriate as final hearing can be occur prior to expiry of term of sentence

PRACTICE AND PROCEDURE – Execution of writs of possession – No point of principle

DEFAMATION – publication and republication – where the Attorney General responded to a request from a journalist by providing quotes for attribution in a forthcoming article – plaintiff seeking to sue Attorney for newspaper article which quoted her email but also included additional allegedly defamatory material – whether open to plead a case against the Attorney suing on the newspaper article as a separate cause of action as opposed to relying on the republication of the quotes as a matter going only to damages

CONTRACT – Contract of employment – Whether employee breached contract – Where employee had responsibility for approving invoices – Where employee approved invoices in respect of services never rendered – Where employee approved invoices at uncommercial rates – Damages. EQUITY – Equitable remedies – Equitable compensation – Breach of fiduciary obligations – Breach of fiduciary duty by employee – Where employee had responsibility for approving invoices – Where employee approved invoices in respect of services never rendered – Where employee approved invoices at uncommercial rates. PROCEDURE – Civil proceedings – Where defendant filed a defence but did not appear at the hearing – Where plaintiff took reasonable steps to notify defendant of the hearing date – Whether hearing should proceed in absence of the defendant.

CRIMINAL LAW – appeal against conviction – judge alone trial – whether extension of time to seek leave to appeal should be granted – whether significant forensic disadvantage direction was adequate – whether reversal of onus of proof – whether Murray direction was adequate – whether limited good character direction should have been given

CRIMINAL LAW – appeal against interlocutory judgment – refusal by trial judge to sever indictment – use of coincidence and tendency evidence – whether risk of prejudice to applicant arising from evidence inadmissible for one purpose but admissible for another can be ameliorated by jury directions – where trial judge finds it is in interests of justice for counts on indictment to be tried together – whether trial judge made an error in exercise of discretion – HELD –appeal dismissed – no error in decision to refuse application for separate trials and for severance of indictment

CRIMINAL LAW - prosecution appeal under s.5F(2) Criminal Appeal Act 1912 from order that Respondent be tried separately from other accused - other accused charged with conspiracy to import commercial quantity of cocaine - Respondent charged with possession of marketable quantity of cocaine - limited evidence against Respondent - primary Judge found there was real risk of positive injustice to Respondent if he was tried jointly with other accused - duties of prosecution and defence counsel concerning conduct of criminal trial - relevance of cost to Legal Aid Commission if Respondent tried jointly with other accused in a long trial - discretionary error not demonstrated - appeal dismissed