Cases and authorities

CRIMINAL LAW – appeal against severity of sentence – whether the sentence was manifestly excessive –whether sentencing judge proceeded on incorrect factual basis – HELD – appeal dismissed – agreement to facts are part of plea of guilty – reduction of total effective sentence sought by applicant not in accordance with process of instinctive synthesis – no error in approach of sentencing judge in determining individual sentences or total effective sentence

CRIMINAL LAW – appeal – aggregate sentencing – whether aggregate sentence manifestly excessive – where trial judge erred in directing the applicant’s release where sentence exceeded three years’ imprisonment – release to parole a matter for Parole Authority CRIMINAL LAW – correction of sentence under s 43 of Crimes (Sentencing Procedure) Act – importance of making and entering order CRIMINAL LAW – effect of s 53A of Crimes (Sentencing Procedure) Act – restrictions on commencement dates in s 47 inapplicable to aggregate sentences – mathematical effect to allow greater latitude in adjusting statutory ratio for an aggregate sentence than where individual sentences imposed CRIMINAL LAW – effect of certificate under s 166(1) of Criminal Procedure Act – applicable jurisdictional limit constraint on sentence that can be imposed for offence on certificate SENTENCING – re-sentence – appellate court not bound by sentencing judge’s decision to impose aggregate sentence if individual sentences thought to be more appropriate in circumstances of particular case

CRIMINAL LAW – evidence – compellability of witnesses – objection by accused’s father to giving evidence for the prosecution against accused – s 18(2) Evidence Act 1995 (NSW) – whether trial judge satisfied himself that prospective witness was “aware of the effect” of s 18 as required by s 18(4) PRACTICE AND PROCEDURE – interlocutory appeals – ‘judgment or order’ – application for leave to appeal under s 5F(3)(a) Criminal Appeal Act 1912 (NSW) – applicant’s father objected to giving evidence against the applicant – primary judge’s ruling that the applicant was a compellable witness was a ‘judgment or order’ for the purposes of s 5F(3) PRACTICE AND PROCEDURE – interlocutory appeals – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal – objection by accused’s father to giving evidence for prosecution against accused rejected – s 18 Evidence Act 1995 (NSW) – prospective witness a “party” for the purposes of s 5F(3) WORDS AND PHRASES – “party” – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal

CORPORATIONS – Winding up – Application for winding up by court on the just and equitable ground – where Australian Securities and Investments Commission investigating matters being, or connected with, the affairs of the companies – where companies apparently conducting business in breach of the Corporations Act 2001 (Cth)

PROCEDURE – application to have proceedings dismissed summarily – summons commencing an appeal to the court – decision appealed from not identified – summons otherwise completely incomprehensible – plaintiff seeming to have tenuous grasp on reality

INCORPORATED ASSOCIATIONS – disputed election of new board – application for interlocutory relief

Appeal – Local Court

CORPORATIONS – Receivers, controllers and managers – Duties and liabilities – where receiver sold land without advertisement in directly negotiated sale – where sale price exceeded valuation – whether serious question to be tried that receiver breached his duty under Corporations Act 2001 (Cth) s 420A – whether controller necessarily obliged to advertise property for sale and sell on-market EQUITY – Equitable remedies – Injunctions – where Applicant would apparently be unable to establish loss at a final hearing – where damages likely to be an adequate remedy – where Applicant delays in seeking injunction

COSTS – where plaintiff as executor successful in proceedings – where plaintiff abandoned additional claim brought in her personal capacity – whether defendant should pay costs of all claims brought – whether plaintiff entitled to indemnity out of estate assets to the extent costs are not paid by defendant

EXTENDED SUPERVISION ORDERS – high risk sex offender – implementation of anti-libidinal medication regime – until effective ESO Conditions insufficient to ameliorate risk adequately – CDO for period of initial medication then ESO

COURT SUPPRESSION AND NON-PUBLICATION ORDERS ACT 2010 – application by forensic patient for non-publication order on grounds in s 8(1)(a) and (e) – whether non-publication order should be made in respect of evidence given or to be given in proceedings or fact that offender may be subject to conditional release – relevance of parallel statutory scheme which applies to proceedings in Mental Health Review Tribunal – order not necessary – importance of open justice – application refused

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk offender – preliminary hearing

CRIMINAL LAW – sentence – murder – contrary to s 18A(1) of the Crimes Act 1900 (NSW) – found guilty by jury after trial – unprovoked attack – spontaneous rather than premeditated attack – intention to inflict grievous bodily harm found – offence in the mid-range of objective seriousness – good prospects of rehabilitation found – no remorse – treated as a young person in sentencing exercise CRIMINAL LAW – sentence – manslaughter – contrary to s 18A(2) of the Crimes Act 1900 (NSW) – late guilty plea to manslaughter as defence to murder due to substantial impairment by way of schizophrenia – unprovoked attack – spontaneous rather than premeditated attack – intention to inflict grievous bodily harm found – offence in the mid-range of objective seriousness – good prospects of rehabilitation found – remorse found – treated as a young person in sentencing exercise – special circumstances found

APPEAL AND REVIEW – judicial review – refusal to award costs to prosecutor under Criminal Procedure Act 1986 (NSW), s 257B – whether prosecutor had right of appeal under Criminal Appeal Act 1912 (NSW) s 5AA – whether refusal to award costs is an “order” – whether prosecutor is a “person” – whether judicial review appropriate remedy

CRIME – appeal by Attorney General against inadequacy of sentence under Criminal Appeal Act 1912 (NSW) s 5D – respondent company convicted of failure to comply with health and safety duty under Work Health and Safety Act 2011 (NSW), s 32 – whether fine imposed inadequate – whether sentencing judge erred in determining objective seriousness of offence, weight to be placed on deterrence, and appropriate discount for guilty plea – whether Court should exercise power to resentence COSTS – criminal proceedings – appeal by prosecutor from refusal to award costs under Criminal Procedure Act 1986 (NSW), s 257B – whether award of moiety of fine to prosecutor under Fines Act 1996 (NSW) s 122(2) displaces order for costs – discretion to make order for prosecutor’s costs

CRIMINAL LAW – sentence – murder – joint criminal enterprise – objective seriousness well above mid-range – not established that the offender was aware of the possibility of death – gratuitous infliction of extreme violence – criteria for life sentence for murder not established CRIMINAL LAW – sentence – two counts of break, enter and steal in company in circumstances of special aggravation – two counts of detain with intention to obtain financial advantage while in company – one count of detain and cause actual bodily harm with intention to obtain financial advantage while in company – joint criminal enterprise – offender instrumental in formulation and execution of some offences – infliction of harm foreseen but not intended CRIMINAL LAW – sentence – offender’s personal circumstances – addiction to methamphetamine – genuine remorse – good prospects of rehabilitation – guilty pleas – assistance to authorities in trial of co-accused last minute – other matters – general deterrence particularly significant for armed home invasion offences – no finding of special circumstances – aggregate sentence imposed

DEFAMATION – pleadings – consideration of the principle stated in Mayfield-Smith v Mirror Newspapers Ltd

PROCEDURE – discontinuance on terms – plaintiffs seek leave to discontinue proceedings – where plaintiffs brought substantially similar claims in earlier proceedings – earlier proceedings settled by deed of release – whether plaintiffs should not be permitted to commence further proceedings raising same claims – leave to discontinue granted on conditions

PROCEDURE – Costs – whether gross sum costs order to be made – proceedings settled under orders for administration of estates of plaintiff’s parents –administration cannot be completed until costs of second defendant and other liabilities resolved - costs to be assessed on an indemnity basis pursuant to previous Court orders made – no evidence as to unreasonableness of costs incurred – plaintiff to continue discussions with NSW Trustee and Guardian in respect of amount due for management fees

CRIMINAL LAW – Statutory construction – Mental health – Where first defendant charged with criminal offences – Order made for a mental health assessment to be conducted – First defendant initially assessed as mentally ill – Subsequently assessed as not being mentally ill – Where matter then brought back before the Local Court – Where Magistrate concluded that the Local Court had no jurisdiction to deal with the charges in view of the fact that the first defendant had been initially assessed as being a mentally ill person – Whether Magistrate erred in construction of the relevant statute – Error established – Proceedings remitted to the Local Court

ORDERS – form of orders setting aside fraudulent conveyance COSTS – indemnity costs – litigation resulting from dishonesty

CRIMINAL PROCECURE – leave to appeal against conviction – Criminal Appeal Rules (NSW) r 4 – whether error giving rise to miscarriage of justice CRIME – directions to jury – indecent assault – mens rea – whether directions in respect of knowledge as to lack of consent erroneous CRIME – directions to jury – sexual assault – mens rea – reasonable grounds for belief in consent under Crimes Act 1900 (NSW) s 61HA – whether failure to identify evidential basis for reasonable grounds – whether failure to explain that evaluation of grounds must have regard to all circumstances of the case – whether assessment of reasonable grounds not wholly objective

LOCAL COURT APPEAL – alleged agreement to vary rent payable under a lease – no written or oral judgment – magistrate did not decide issue because plaintiff conceded claim for rent untenable – no error of law in acting on concession – appeal dismissed

PRACTICE AND PROCEDURE – application to strike out statement of claim – application for summary dismissal – where two earlier proceedings involving the same claims summarily dismissed – whether statement of claim discloses any arguable cause of action – whether any of claims are arguable – whether proceedings are an abuse of process – statement of claim struck out and proceedings dismissed

CIVIL PROCEDURE – late service of documents – where documents served by email one business day after due date – whether serving party should be reprimanded

TRUSTS AND TRUSTEES – JUDICIAL ADVICE – whether plaintiff as executor of will would be justified in consenting to defendants withdrawing from proceedings on basis of there being no order as to costs

REAL PROPERTY – torrens title – caveats against dealings – removal of caveat – where caveat based on intellectual property – where caveator claimed copyright over signature on mortgage document – whether copyright over signature on mortgage creates a caveatable interest in subject land – no merit to caveatable interest claimed

COSTS – where plaintiff sought to have first listing of defamation action postponed several times – liability for costs of listing

INSURANCE – general insurance – s 6 of Law Reform (Miscellaneous Provisions) Act 1946 – whether plaintiffs should have leave under s 6(4) to commence proceedings against D&O insurers of director defendants – where common ground that plaintiffs have arguable case against director defendants and that policies respond to such claim and that director defendants unlikely to be able to meet any judgment – where insurers have confirmed cover but with reservations - whether any utility in granting leave

CRIMINAL LAW – sentence – offender charged with murder – offender convicted by jury of manslaughter – where the evidence is purely circumstantial – where the victim died from blunt force trauma to the head – where the offender and victim were grossly intoxicated – where a central issue of fact is the use of a motor vehicle and/or a boulder as a weapon – finding that the offender intentionally reversed the vehicle over the victim – whether the categorisation of manslaughter has any bearing on objective seriousness – held to be manslaughter by unlawful and dangerous act – finding of special circumstances

PRACTICE AND PROCEDURE – Amendment of pleadings – No point of principle

APPEAL – application for leave to appeal – interlocutory orders – application to add defendants – whether arguable cause of action – application to add further fresh claims – questions of practice and procedure – whether proposed new pleadings defective – whether error on part of trial judge – whether refusal of leave would cause substantial injustice TORTS – duty of care – liability for criminal activities of third party – whether arguable that business directly liable for criminal acts of employee or independent contractor in circumstances where company had knowledge of criminal tendencies and created opportunity for third party to provide services to members of the public – whether claim reasonably arguable

CONTRACTS – contract between Council and successful tenderer ‑ proper construction of option DAMAGES – calculation of damages for breach of contract – assessment of damages for loss of chance to renew the contract – future-looking damages

CRIMINAL LAW – evidence – admissibility of evidence concerning accused’s involvement with ice – s 137 Evidence Act – highly relevant evidence of motive – unfair prejudice can be averted with jury directions – evidence admissible

EVIDENCE – Prohibition of publication of evidence – Statutory powers – Application by certain Defendants, for whom judgment was given by consent, for non-publication order in respect of settlement sum – where sum published in judgment given in contested proceedings against another Defendant PRODEDURE – Judgments and orders – Amending, varying and setting aside – Application for recall and amendment of judgment – whether aspects of judgment inconsistent with judgment for Applicant by consent

PRACTICE AND PROCEDURE - proceedings commenced in the District Court of NSW seeking damages for breach of contract - Defendant in those proceedings applies to cross-vest proceedings to Victoria - application under s.140(1) Civil Procedure Act 2005 and s.5(2)(b)(iii) Jurisdiction of Courts (Cross-vesting) Act 1987 - whether transfer of proceedings to Victoria is in interests of justice - transfer application declined

CRIMINAL – application to invite the jury to consider acquittal at the close of the Crown case – Prasad invitation – assessment of whether the Crown case is weak – assessment of Crown case as strong – application rejected

CONTRACTS – exclusive distribution agreement – minimum order obligation – construction – breach – contractual right of termination – construction – election – implied obligation to co-operate and act reasonably – scope – distributor’s application for trade mark – entitlement to terminate. PRIVILEGE – legal professional privilege – common interest – potential conflict. EQUITABLE REMEDIES – third party distributor – injunction – delay – adequacy of damages – distributor’s application for trade mark – unclean hands.

CONTRACTS – Construction and interpretation of commercial contract – Date of valuation of two properties to be determined - Meaning of “accrued profits” to be determined.

COMPULSORY ACQUISITION – acquisition of crane swing, rock anchor and scaffolding easements – whether primary Judge erred in rejecting injurious affection claim under s 55(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) – whether primary Judge failed to apply “before” and “after” test in assessing compensation – whether primary Judge applied the wrong test in determining whether a tenant would vacate the servient tenement in consequence of the proposal to carry out a public purpose rock anchor easement – whether s 62 of the Just Terms Act applies to a rock anchor easement

APPEAL – costs – applicant’s case not reasonably arguable – order for indemnity costs warranted

EQUITY - assignments in equity – whether there had been an equitable assignment of the benefit of an insurance policy from the appellant company to the deceased’s estate EQUITY – estoppel by conduct - promissory estoppel – whether appellant company had made a clear and unequivocal representation upon which the deceased had relied to his detriment EQUITY - general principles – mistake – whether there was a common operative mistake – whether parties entered into deeds under bilateral mistaken belief CONTRACTS - general contractual principles - construction and interpretation of contracts – whether Development Agreement should be interpreted in a literal sense, having regard to parties’ objective intentions and text, context and purpose of the deed APPEALS – general principles – consequences of advancing a new submission on appeal that was not raised at trial

EQUITY — Trusts and trustees — Termination of trust — Rule in Saunders v Vautier — Assignment of respective interests to principal beneficiary who holds life estate unavailable – Possibility new beneficiary may arise – Partial administration orders – Distribution of trust property – Effective end to administration of trust EQUITY — Trusts and trustees — Partial administration orders — Uniform Civil Procedure Rules 2005 NSW, rule 54.3 - Distribution of trust property – Protection of contingent rights — Contingencies remote — Undertaking by plaintiff beneficiary to account for distributed trust property if required — Inappropriate for court to require undertakings detrimental to personal relationships — Undertaking to account sufficient — Protection of trustee – Judicial advice

REAL PROPERTY – easements – extinguishment of easements – where extinguishment of easements a requirement of development consent – whether easements obsolete – whether extinguishment would cause substantial injury – easements extinguished subject to conditions

EQUITY – Practice and Procedure –litigant in person – referred previously to pro bono assistance – plaintiff with strong accent and very difficult to understand at times to be self-represented at trial –interpreter not required - whether court reporting or court recording is appropriate.

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 – where schemes and their conditions precedent provide for recapitalisation and change in control of the companies, waiver of contractual change of control provisions, variation of director nomination rights, and interest rate and maturity date concessions by creditors – whether terms create different classes of creditors – whether adequate disclosure made in explanatory statements – whether requirements to order scheme meetings satisfied

CRIMINAL LAW – terrorism trial – objection taken by the accused in relation to items found at home and on the devices of another person accused of terrorist offences – where accused in this trial makes reference to having the “plan” of other accused – whether evidence relevant – whether court required to exclude evidence under s 137

Costs – indemnity costs – stay of orders – stay of assessment of costs.