Cases and authorities

REAL PROPERTY – notice of motion – application to stay enforcement orders until matter heard – motion dismissed

PRACTICE – stay of proceedings – where appeal nugatory if stay not granted – no question of principle

PRACTICE – Application to reopen decision refusing leave – no basis for reopening made out

JUDICIAL REVIEW – Minister’s proposal to merge part of a local government area (LGA) with the whole of another LGA – Merger Proposal referred to a Delegate of the Chief Executive for examination and report – whether the Delegate was required to consider the advantages and disadvantages of the Merger Proposal insofar as it contemplated the excision of part of one LGA – whether the Delegate misapprehended his functions under s 263(1) and (3) of the Local Government Act 1993 (NSW) – whether relief futile – whether Delegate carried out the statutory task of examination and report in relation to the Merger Proposal – whether constructive failure to fulfil the statutory function because the Delegate lacked access to documents over which the Department claimed public interest immunity PUBLIC INTEREST IMMUNITY – whether the primary Judge was correct to uphold a claim of public interest immunity to the production of documents recording analyses of the financial advantages and disadvantages of the Merger Proposal – documents prepared by consultants but submitted to Cabinet – whether public interest in the production of the documents outweighed the public interest in preserving secrecy and confidentiality PROCEDURAL FAIRNESS – whether an objecting Council denied procedural fairness because it was refused access to documents relevant to the Delegate’s task STATUTORY INTERPRETATION – whether reasonable public notice of an inquiry given as required by s 263(2B) of the Local Government Act 1919 (NSW)

CRIMINAL LAW – appeal – sentencing – white-collar crime – fraud offences – rolled up counts – gambling addiction – relevance of gambling addiction at sentence – whether gambling addiction mitigating factor – whether error in remarking that gambling addiction cannot be equated with drug addiction at sentence – whether error in assessment of the objective seriousness of the offence – rehabilitation – whether error in consideration of rehabilitative actions occurring after arrest – whether insufficient weight given to reparation, good character and first offender status – whether manifestly excessive

CORPORATIONS – winding up – liquidators – judicial advice – whether liquidator is justified in accepting an offer less than the value of property – where no valid contract – offer includes a discount and items which may not be deductible – where acceptance in the commercial judgment of the liquidator probably provides a better result than the risk, delay and costs associated with litigation – where open to negotiate more favourable terms – where monies received to be treated as assets in the liquidation - held liquidator would be justified in accepting the offer or an offer on more favourable terms.

JUDGMENT & ORDERS – Consent Orders – Construction – Note to Orders was representation by party as to payment of money by stated date from which the party cannot resile – purposive construction to resolve substantive issues defeated if payment to which Note 7 refers is not obligatory.

PRACTICE AND PROCEDURE – application for separate trial – no prejudice established to justify separate trial – joint trial in the interests of justice

CONTRACT – PRACTICE AND PROCEDURE – where court noted agreement between the parties that funds be paid into joint controlled money account until further order of the court – whether court should make further order – proper construction of the agreement

CRIMINAL LAW – sentence – excessive self-defence manslaughter – serious example of the offence of manslaughter – positive subjective case – remorse – good prospects of rehabilitation – delay – finding of special circumstances

INSURANCE – requirement to act with utmost good faith – Insurance Contracts Act 1984 (Cth), s 13 – whether breach of duty of good faith – where respondent obliged to determine claim for indemnity in a timely manner and without due delay – where appellant held Combined Building and Home Contents Policy issued by respondent – where appellant’s building damaged during storm in late December – where appellant lodged claim under policy on 29 December – where insured’s assessor visited property the next day – where another assessor attended on 12 January and explained to appellant insurer did not pay for structures not built to standard – where appellant injured when attempted to repair building two days later – where insurer declined liability 4 days later DAMAGES – CONTRACT – action for breach of contract – remoteness of damages – whether parties might reasonably contemplate that an insured could suffer personal injury as a result of breach of insurance contract providing coverage with respect to property damage – whether circumstances reasonably within the contemplation of the parties at the time of contracting PRODEDURE – whether primary judge erred in not drawing Jones v Dunkel inference – where respondent failed to call witness who initially assessed insurance claim – whether state of evidence before primary judge warranted Jones v Dunkel inference PROCEDURE – Supreme Court procedure – application to lead further evidence pursuant to s 75A(8) Supreme Court Act 1970 (NSW) – whether special grounds for further evidence made out – whether further evidence could have been obtained with reasonable diligence for use at trial – whether further evidence would likely change outcome of trial – whether further evidence credible EVIDENCE – admissibility and relevance – opinion evidence – whether expert evidence complied with Evidence Act, s 76 and s 79 – where medical certificates failed to identify specialised knowledge based on expert’s training, study or experience on which opinion wholly or substantially based – where trial judge rejected history set out in expert reports

PRACTICE AND PROCEDURE – criminal appeal – prosecution appeal against inadequacy of sentence – application by offender to vacate hearing – late withdrawal of legal representation – failure to obtain private funding – application for legal aid pending

CRIME – appeal – sentencing – whether error of principle permitting appeal from the exercise of a discretionary power – failure to accord weight to mental health issues – mental health addressed for relevant purposes – no relevant error identified CRIME – appeal – sentencing – hardship to members of offender’s family – whether – exceptional hardship required for purposes of s 16A(2)(p), Crimes Act 1914 (Cth) – whether sentencing court misapplied principle – hardship not excluded from consideration

CRIMINAL LAW – appeal – Crown appeal – appeal against sentence – whether sentence was manifestly excessive – consent in relation to sexual assault – whether residual discretion should be exercised – appeal upheld – applicant resentenced

CRIMINAL LAW – conviction appeal – whether trial miscarried by reason of failure of applicant’s counsel to lead evidence of good character – where failure said to be an oversight – where complainant’s cousin complained of similar indecent assault by the applicant upon her – where Crown would have led evidence of that alleged offence to rebut good character evidence – failure to adduce good character explicable on that basis – no miscarriage of justice – appeal dismissed

CRIMINAL LAW – application for leave to appeal against conviction – appeal on ground that verdict of the jury was unreasonable and cannot be supported having regard to the evidence – applicant convicted under Crimes Act 1900 (NSW), s 112(2) of breaking and entering a dwelling-house and committing a serious indictable offence in circumstances of aggravation – whether it had been established that the applicant had broken and entered – inconsistencies in complainant’s evidence – whether complainant was an unreliable witness whose evidence should not have been accepted – whether leave to appeal should be granted CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that the offending was aggravated by being committed in the home of the victim under Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – relationship between Crimes Act 1900 (NSW), s 112(2) and Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) – whether sentencing judge double counted fact that offending was committed in the victim’s home – whether it is an element of s 112(2) that premises which are the subject of offending are those of the victim CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in finding that offending was in the middle of the range of objective seriousness – whether factual findings support conclusion reached by sentencing judge – sentencing judge found that applicant broke into premises in possession of a knife, kicked the victim in the stomach, produced the knife and assaulted the victim – when finding of objective seriousness of particular offending by sentencing judge will be set aside CRIMINAL LAW – application for leave to appeal against sentence – whether sentencing judge erred in not quantifying the discount he gave to the applicant on account of delay in the proceedings and the applicant being on bail – whether sentencing judge obliged to specify a discount CRIMINAL LAW – application for leave to appeal against sentence – whether sentence manifestly excessive – whether sentence unreasonably or plainly unjust – relevance of sentencing statistics and sentences in cases involving comparable offending – relevance of fact that applicant did not plead guilty

SENTENCE APPEAL – specially aggravated break enter commit serious indictable offence – joint criminal enterprise – violent home invasion with intentional wounding – whether sentencing judge erred in assessment of culpability – whether sentencing judge gave adequate weight to applicant’s age – young offender – whether parity principle observed – no error found – leave to appeal dismissed

APPEAL – leave to appeal – challenge to validity of costs certificate – whether final or interlocutory order – whether order relating to costs – whether leave to appeal required under Supreme Court Act 1970 (NSW), s 101(2)(e) or (q) APPEAL – re-litigation of issue determined in previous appeal – issue not determinative of earlier appeal – whether sufficient basis for contention that earlier reasoning was erroneous JUDGMENT AND ORDERS – costs certificate – costs order forming basis of assessment set aside – costs order reinstated on appeal – whether original costs certificate valid

BUILDING AND CONSTRUCTION – where builder filed payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where resulting adjudication determination filed as judgment debt – whether requirement to notify affected party of judgment debt before commencing proceedings to enforce it – whether s 25(4) creates right to such notice BUILDING AND CONSTRUCTION – ex parte garnishee order obtained – whether duty of candour to inform court that affected party had commenced proceedings challenging validity of underlying adjudication determination under Supreme Court Act 1970 (NSW), s 69

JUDICIAL ADVICE – whether matter appropriate for advice – whether this Court is the appropriate forum for such advice – consideration of the approach to be taken to giving advice to a trustee in respect of (1) defending current proceedings; and (2) commencing new proceedings – whether applicant has complied with previous undertakings to the Court in relation to the commencement of proceedings.

CRIMINAL LAW - murder trial - expert evidence sought to be adduced by Crown - not subject of supplementary expert report - evidence given on voir dire - whether evidence should be excluded - evidence allowed

Practice and procedure – application to amend to include family provision claim – no issue of principle

WILLS, PROBATE AND ADMINISTRATION – Testamentary capacity – Testator with traumatic brain injury – No issue of principle

PRACTICE AND PROCEDURE – application for leave to join plaintiff’s husband as second plaintiff – where reason for addition of second plaintiff said to be largely practical – proposed second plaintiff has no cause of action in tort – leave refused PRACTICE AND PROCEDURE – application for leave to file amended statement of claim – where Registrar granted leave to amend extant statement claim on a limited basis – amended statement of claim subsequently filed exceeded limitations of that grant of leave – where proposed amended statement of claim fails to plead all elements of causes of action – leave refused

CRIME – conviction appeal – manslaughter – where two separate acts of the appellant relied on as constituting the voluntary act causing death – whether trial judge erred in not directing jury that they could not convict unless they were unanimous as to the voluntary act or acts which resulted in their verdict – whether proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) applicable CRIME – conviction appeal – manslaughter – where references by Crown before jury to “king hit” offence and where handwritten material found in jury room at conclusion of trial which urged the stopping of “coward” punches – whether “miscarriage of justice” within third limb of s 6(1) – whether reasonable basis for apprehending that the jury or a juror had not discharged task impartially CRIME – conviction appeal – manslaughter – where note containing extracts of dictionary definitions including “murder” and “manslaughter” found in jury room at conclusion of trial – whether miscarriage of justice – whether reasonable basis for apprehending that a juror had not considered the evidence and the charges made in accordance with the directions of the trial judge CRIME – conviction appeal – manslaughter – written directions to jury including “question trail” – whether formulation of questions relating to self-defence confusing and reversed or distorted onus of proof EVIDENCE – criminal appeal – exclusionary rule of evidence as to deliberations of jury – Evidence Act 1995 (NSW) s 9(2) – whether evidence as to provenance of notes and writing on magazines covers, and whether they came to the attention of jurors, admissible

CRIMINAL LAW – appeal against sentence – historical child sexual assault – rape and buggery – failure to adhere to mandatory statutory requirements concerning Form 1 documents – application of R v MJR (2002) 54 NSWLR 368 and related sentencing principles for historical offences –where maximum penalty reduced after date of offences but subsequently increased by a lesser extent prior to sentence – correct approach is to have regard to the maximum penalty at the time of the offence and at the time of sentence as opposed to arbitrary points in between – no failure to have regard to sentencing practices that applied at the time of the offences – no erroneous failure to give sufficient weight to the applicant’s age and ill-health in the exercise of the sentencing discretion – sentence not manifestly excessive where offending was ongoing and extremely serious – appeal dismissed

CRIMINAL LAW – appeal against sentence – supply prohibited drug – possess unauthorised pistol - where the sentencing judge failed to have proper regard to the lack of a significant record – where the sentencing judge erred in announcing an indicative sentence prior to applying a discount of a plea of guilty – where the sentence was manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal against sentence – conspiracy to supply a prohibited drug – whether trial Judge erred in failing to find a causal connection between mental health and emotional state and offending – where did not give evidence in the witness box – where no expert evidence supported causal connection – appeal dismissed CRIMINAL LAW – trial Judge erroneously refers to standard non-parole period for offence – erroneous reference had no effect on sentence – no error established

CRIMINAL LAW – appeal – appeal against sentence – offence of administer intoxicating substance with intent to commit indecent assault – sentencing judge erred in not properly assessing objective seriousness of offence – appellant resentenced CRIMINAL LAW – sentencing – whether mental illness relevant to appellant’s moral culpability where not causally connected to the offence – significance of general deterrence where appellant suffers psychiatric illness – Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1 – R v Engert (1995) 84 A Crim R 67 CRIMINAL LAW – sentencing – relevance of extra-curial punishment CRIMINAL LAW – sentencing – offences contrary to ss 38 and 61L Crimes Act 1900 – offences of administer intoxicating substance with intent and indecent assault – very strong subjective case – subjective considerations must not cause inadequate weight to be given to objective circumstances – no other penalty than imprisonment appropriate – whether custodial sentence should be suspended

CRIMINAL LAW – conviction appeal – three counts of sexual intercourse with a child under the age of 10 – complainant aged 4 to 5 – delay in bringing prosecution – whether trial judge failed to appropriately warn jury as to unreliability of complainant’s evidence – s 165 Evidence Act direction – Murray direction - capacity of jury to assess evidence given in denial of charges – whether trial judge failed to adequately direct jury as to the burden and standard of proof – whether trial judge failed adequately to direct jury as to the accused’s evidence – child accused – whether trial judge failed to adequately direct jury on question of doli incapax – RP v The Queen [2016] HCA 53 considered – whether verdict unreasonable or cannot be supported by the evidence – open to jury to find guilt beyond reasonable doubt – appeal dismissed

CORPORATIONS — Application under s 444E(3) of the Corporations Act 2001 (Cth) to continue proceedings against company in deed administration – where company’s insurer would bear the costs of defending the proceedings – where company is one of two defendants – whether leave ought be granted to continue proceedings.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application to defer a meeting of members to consider and if it thought fit to agree to a proposed scheme of arrangement – where acquirer has, since the first court hearing, agreed to acquire another company associated with the company to be acquired under the scheme – where Plaintiff needs more time to address developments in the explanatory memorandum and independent expert’s report – whether meeting should be deferred.

CORPORATIONS – external administration – whether appropriate to wind up company on the just and equitable ground – where irretrievable breakdown between directors and shareholders and the affairs of the company are deadlocked – where solvency of company doubtful – where earlier assertion that some other remedy apart from winding up available not pressed.

RESTRAINT OF TRADE – application for interlocutory injunction – balance of convenience – where removal of non-compete clause was negotiated – where first defendant has confidential information – whether delivery up of computer devices by the first defendant would provide sufficient protection – adequacy of damages as a remedy for any breach – whether parties capable of assessing their best interests at the time of contracting – where proposed orders would expose the first defendant to hardship

BAIL – show cause – cause not shown – where bail would have been refused on balance of charges in any event

BAIL – show cause – whether unacceptable risks – conditions imposed

SUPPRESSION ORDERS – Court Suppression and Non-Publication Orders Act 2010 – primary objective of administration of justice is to safeguard the public interest in open justice – whether safety of high risk sex offender at risk – whether suppression order necessary – whether evidence sufficient to establish that an order is necessary for the safety of the defendant – whether order of any utility in any event

COSTS – interest on costs – where successful appellant seeks order for interest on costs of proceedings at first instance and on appeal following final judgment – where order for interest on costs at first instance made by primary judge in favour of respondent – where making of that order was not opposed – where not suggested successful appellant’s conduct resulted in delay of prosecution of appeal or that respondent prejudiced by making of application for interest on costs after final orders in appeal – orders made for interest on costs of proceedings at first instance and on appeal INTEREST – judgments – where payment made by successful appellant to respondent as plaintiff in satisfaction of judgment at first instance which was then reversed on appeal – where that amount repaid by respondent immediately following decision on appeal – where claim by appellant for interest on judgment amount repaid – whether interest should be awarded at pre-judgment rate (Civil Procedure Act 2005 (NSW), s 101) or post-judgment rate (Civil Procedure Act, s 100) – effect of UCPR r 51.19 in circumstances where interest sought in substance pre-judgment interest on an amount claimed by way of restitution – interest awarded at pre-judgment rate

PROCEDURE – application for leave to appeal against interlocutory decisions made in District Court of NSW – refusal of application by self-represented litigant for leave to issue a subpoena – limitations on grant of leave to self-represented applicant to amend pleadings – Leave to appeal refused in respect of both impugned decisions

CRIMINAL PROCEDURE – discharge of single juror on grounds of illness – trial ordered to continue with balance of jurors

EQUITY – trusts and trustees – appointment of trustees by the court under Trustee Act 1925 (NSW), s 70 – where constructive trustee has died and there is no trustee to administer the trust – vesting order under Trustee Act 1925 (NSW), s 71

CRIMINAL LAW - murder trial - mother and stepfather charged with murder of 3 year old son - issue as to cause of death - objection to Crown asking questions of medical expert on a topic not included in expert report - whether questions on this topic involve Crown changing its case against Accused - Crown confined to case against Accused as opened to the jury - observations concerning desirability of joint expert conference procedure in criminal proceedings

PRACTICE AND PROCEDURE – Litigant in person – Application for recusal arising from the fact that the trial judge previously prosecuted two witnesses who are to be called in the plaintiff’s case – Application refused

COSTS – indemnity costs – basis for ordering – where Plaintiffs made grave allegations of misconduct which were either abandoned without explanation or held to be without merit – indemnity costs warranted.

ADOPTION – application by sister to adopt now adult brother – where sister has acted in maternal role for much of brother’s life - where applicant sister and brother in regular contact with birth parents – where adoption order said to legitimise de facto relationship akin to mother and son between sister and brother – where adoption order said to be a tool whereby brother can achieve psychological independence from his birth parents – where birth parents consent to adoption order being made

PROCEDURE – Judgments and orders – In general – where judgment given that proceedings should be dismissed – whether order should be made giving effect to the judgment

TORT – misfeasance in public office – audit of account of taxpayer – issuance of amended assessment – recovery proceedings – whether cross defendant did an invalid or unauthorised act – conscious maladministration – malice – whether the cross defendant acted improperly or in bad faith with motive of doing target harm – targeted malice or reckless indifference PROCEDURE – abuse of process – whether commencement of recovery proceedings were for an improper purpose EQUITY – good faith – fiduciary relationship – public officer – whether the cross defendant owed the cross claimant duty to act in good faith CONTRACT – implied duty to act in good faith – relationship between public officer and tax payer COSTS – economic damages – aggravated damages – humiliation and embarrassment and stressed caused my actions of cross defendant COSTS – on usual basis or indemnity – whether Calderbank offer

CRIMINAL LAW – sentence appeal – drug related offences – manifestly excessive ground – all circumstances of offence relevant – consistency – numerical equivalence – wide discretion – flexibility in sentencing – supply of prohibited drug cannabis – less than indictable but greater than trafficable quantity – significance of quantity of drug – applicant’s role and level of criminality – broader criminal activity – drug dealing and enterprise – actual supply – deeming provisions – monetary gain –applicability of statistics as to sentencing patterns – applicability of comparable cases – sentence imposed not manifestly excessive – supply of prohibited drug methylamphetamine – less than commercial quantity but significant quantity – applicant’s role principal and a dealer – admitted offences – retribution – general deterrence and general denunciation – accumulation ground – degree of accumulation – discretion in fixing accumulation – possession for supply of cannabis separate act criminality – the principles of totality – accumulation necessary to address the total criminality of each offence – leave to appeal against sentences granted – appeal is dismissed

PRODEDURE – Contempt, attachment and sequestration – where Respondent contends that Applicant is in contempt of court and ought therefore not be permitted to file its interlocutory application – where Respondent court-appointed receiver with power of sale over the Applicant’s assets – where Applicant undertook not to deal with assets – where Applicant claimed to have granted a parol lease of the assets before giving the undertaking and executed a written lease after the undertaking ceased to have effect – whether Applicant breached undertaking by granting lease – whether Applicant in contempt by frustrating receiver’s functions. PRODEDURE – Costs – Departing from the general rule – where successful party relies on evidence that could have been brought to the attention of the Court and the other party on earlier occasions – whether an order should be made as to costs.