Cases and authorities

COSTS – where Owners Corporation filed summons seeking judicial review of orders made by NCAT member – where parties agreed as to appropriate orders prior to hearing – whether offer made by Owners Corporation to settle proceedings was “mixed”, such that r 42.13A of the UCPR does not apply – finding that the offer was a mixed offer – exercise of general discretion – appropriate that each party bear its own costs

LOCAL COURT APPEAL – appeal under s 39(1) of the Local Court Act – whether Local Court erred by not addressing in its reasons that respondent was precluded from relying on inability to remedy goods as grounds for rejecting goods because of failure to plead that ground - whether Local Court erred in directing itself as to the test for “major failure” – whether no evidence to make certain findings – appeal dismissed

COSTS – where plaintiff successful – where defendants each filed a submitting appearance – where plaintiff seeks order against a submitting party who was not the decision-maker – general rule that costs follow the event – whether to depart from general rule

SUCCESSION – FAMILY PROVISION – The Plaintiff, an adult child of the deceased, makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant is also an adult child of the deceased and the sole executrix and beneficiary named in the Will ––Reasonably large estate in value principally comprising real property – No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the provision to be made

INDUSTRIAL LAW – New South Wales – statutory provisions relating to public sector employees – Workers Compensation Act 1987 Sch 6 – Workers Compensation Legislation Amendment Act 2012 (NSW) Sch 12 Pt 19H cl 25 – changes to workers compensation scheme – exemption of police officers, paramedics and firefighters – whether respondent “paramedic” within meaning of cl 25 INDUSTRIAL LAW – New South Wales – awards and agreements – appeal from Workers Compensation Commission – where primary judge confirmed finding of an arbitrator that respondent a “paramedic” within cl 25 at date of workplace injury – where respondent employed by Ambulance Service of NSW as Ambulance Operations Officer or “paramedic” under Operational Ambulance Officers (State) Award – where respondent suffered psychological injury in the course of employment as Ambulance Operations Centre Officer – where at date of injury respondent had not undertaken courses or completed examinations required by proviso to classification provision in award – whether in consequence respondent no longer held status or designation as an “Ambulance Officer” or “paramedic” INTERPRETATION – general rules of construction of instruments – interpretation of proviso in industrial award setting out requirements for Ambulance Officer or “paramedic” – proviso required successful completion of courses and examinations every two years – whether failure to undertake courses or complete examinations required by proviso to classification provision resulted in loss of status as “Ambulance Officer” or “paramedic” PROCEDURE – extension of time to file notice of appeal – where notice of intention to appeal filed – where miscalculation of due date for filing notice of appeal – where no prejudice suffered by respondent – Uniform Civil Procedure Rules 2005 (NSW) 51.10

CONTRACT – building and construction contracts – defects in concrete pavements at container terminal at Port Botany – breach of warranty admitted – breach arose prior to acquisition by first respondent of leasehold over terminal – whether accrued cause of action for breach assigned to first respondent – whether reference to surrounding circumstances permissible in construction of deed of assignment – whether first respondent acquired terminal with knowledge of defects and therefore suffered no loss as a consequence of them – whether first respondent entitled to recover damages for cost of full replacement of concrete pavement – whether damages awarded to first respondent ought to have been reduced for betterment PROCEDURE – costs – whether costs should not have been awarded on an indemnity basis

CRIMINAL LAW - sentence - domestic violence offences - offence of recklessly causing grievous bodily harm against Applicant’s former wife - Applicant subject to conditional liberty at time for separate assault against a different former partner - Applicant with mental health issues - history of domestic violence against former wife and former partner - claim of error in approach to breach of conditional liberty - claim of error in approach to accumulation of sentences - claim that total effective sentence manifestly excessive - no error demonstrated - leave to appeal refused

EVIDENCE – criminal proceedings – relevance and unfair prejudice – schedule of telephone records – probative as corroboration or support for some evidence of witness – highly probative – any unfairness will be countered by directions

CIVIL – contempt proceedings – application for release order – applicant remanded in custody

CONTEMPT – civil contempt – failure to comply with orders of the Court – alleged contemnor seeks permanent stay of contempt proceedings – tutor previously appointed for alleged contemnor – whether alleged contemnor fit to face charge of contempt – whether requirements of fitness to plead test in R v Presser [1958] VR 45 satisfied – contempt proceedings permanently stayed

STATUTORY INTERPRETATION – whether consent under s 13(4) of the Mining Act 1992 (NSW) was given – importance of wording – no statutory provisions imposing formal requirements CRIMINAL LAW – application for a directed verdict on ground that letter could not amount to consent as a matter of law – mixed questions of law and fact – question whether letter capable of constituting consent under s 13(4) question of law – question whether evidence taken at its highest could amount to consent question of law – whether letter amounts to consent question of fact for jury CRIMINAL LAW – no case submission by alleged accessory before the fact – Crown obliged to prove that accessory knew the requisite mental state of alleged principal offender – evidence taken at its highest sufficient CRIMINAL LAW – Prasad direction – inappropriate in complex case where evidence comprised substantial quantity of documents to which the jury had not yet been taken

REAL PROPERTY – possession of land – mortgages – writ of possession – order seeking to stay the execution and set aside default judgment – whether satisfactory explanation for failing to defend proceedings – whether arguable defence on the merits – whether personal service took place – fraud – whether elderly – default judgment set aside

CORPORATIONS – winding up in insolvency – statutory demand – application for order setting aside – company accepts that debt is owing but contends that it is not due and payable – whether grounds for setting demand aside are established.

REAL PROPERTY – mortgages – equitable mortgage by deposit of title documents – whether certificate of title deposited with intention that property be security for debt – whether deposit effected by authorised agent of owner of property – whether inference as to existence of authority should be drawn

TRUSTS AND TRUSTEES – equitable interests in trust property – company acting solely as trustee – orders for winding up and appointment of liquidator made – liquidator later appointed by the court to be receiver of the trust property – application by liquidator/receiver for approval of remuneration and expenses – quantification thereof – claim by liquidator/receiver that total remuneration and expenses be paid out of trust estate in priority to all other claims and interests – whether such priority warranted – whether confined to remuneration and expenses of recovery, care and preservation of trust property – whether present application is a suitable context for adjudicating all claims to priority over beneficiaries.

BAIL – release application – strength of the Crown case – whether unacceptable delay – assessment of anterior delay – failure to show cause why continued detention is not justified – release application refused

BAIL – detention application – overwhelming Crown case – whether risk of failing to appear – whether ongoing threat – whether risk of interference with witnesses or evidence – future delay – no bail concerns that cannot be ameliorated by appropriate conditions – detention applications dismissed

CRIMINAL LAW – trial by judge alone – murder – contract killing – Brothers for Life – informant witnesses – circumstantial case – where deceased had many enemies – relevance of evidence of motive in others – overpriced kebab shop – “business” – whether sham transaction – where dangerous to convict on evidence of individual informers – requirement that evidence be supported by other evidence – surveillance and telephone intercepts – connections and meetings between accused and participants – accused met with driver and shooter two hours before killing – evidence of reconnoitre of victim’s house five days before shooting – whether evidence of informants supported by surveillance evidence – where gaps in surveillance – whether supported by telephone intercepts – inferences available from evidence – timing of meetings CRIMINAL LAW – EVIDENCE – snub nose 38 – movement of murder weapon after murder – whether admissible against both accused – joint criminal enterprise – co-conspirators rule – whether act done in furtherance of criminal enterprise – evidence admissible to establish connexion with murder weapon – evidence not admissible to prove consciousness of guilt CRIMINAL LAW – EVIDENCE – evidence that may be unreliable – hearsay evidence – where evidence favourable to accused – requirement for warning that evidence may be unreliable – warning should be tempered where evidence favourable to the accused – wall of silence – all of the hearsay – where hearsay evidence gives rise to inferences inconsistent with guilt – Crown to exclude beyond reasonable doubt

INSURANCE – claims generally – application for leave to appeal from refusal of application by plaintiffs for leave pursuant to s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join defendant’s professional indemnity insurer – principles governing discretion to grant leave – application for leave to appeal heard concurrently with appeal in event leave were to be granted – complaint that insufficient material for primary judge’s finding that insured’s conduct caused such prejudice that insurer entitled to disclaim liability – complaint that primary judge erred in not finding that there was a real possibility that insured would not be able to meet an adverse judgment – where amount in dispute relatively small and other avenues open to plaintiffs – application for leave to appeal refused.

COSTS - whether, pursuant to r 42.19 of the UCPR, the plaintiff on discontinuing the proceedings is required to pay the defendant’s costs – whether the plaintiff can establish a positive ground or good reason for departing from the ordinary course under r 42.19

ASSOCIATIONS AND CLUBS – incorporated association – application by association itself for a winding up order – reliance on several grounds – particular efficacy of ground based on special resolution for winding up by the court.

DEFAMATION – interlocutory steps – dispute as to categories for discovery – dispute as to necessity of interrogatories – where interrogatories directed to a fact in issue being the state of mind of an opponent – where interrogatories directed to a matter which is admitted

CRIMINAL LAW – Evidence – Cross-examination – Whether the Court should limit the use of leading questions CRIMINAL LAW – Evidence – Re-examination – Where accused sought to cross-examine a witness as to statements made to that witness by the deceased – Whether in that event the Crown should be permitted to re-examine the witness as to other representations pertaining to the same subject matter

CRIMINAL LAW – Evidence – Where witness gave evidence at committal hearing – Where witness now unavailable – Whether Crown should be permitted to rely upon evidence given at committal – Whether accused had a reasonable opportunity to cross-examine the witness at committal – Whether the probative value of the evidence was outweighed by danger of unfair prejudice to accused –Evidence admitted

CRIMINAL LAW - murder trial - objection to part of conversation recorded during walkthrough interview between police and Accused LN - objection on ground of relevance and under s.137 Evidence Act 1995 - evidence relevant - probative value not outweighed by any prejudicial effect - evidence allowed

CRIMINAL LAW - murder trial - objection to parts of conversations recorded by surveillance device or telephone intercept - requirements for prosecution notice under s.142 Criminal Procedure Act 1986 - need to identify electronic evidence to be relied upon by prosecution - objection under s.146 Criminal Procedure Act 1986 overruled - objection to one conversation upon basis of principles in Pavitt v R and under s.137 Evidence Act 1995 - not demonstrated that party to conversation was “agent of the state” - evidence should not be excluded under s.137 - objection overruled - objections to other parts of conversations upon basis that not relevant and under s.137 - objections overruled - evidence of conversations admitted

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – stay of proceedings – whether stay of judgment should be lifted – release of payment made into Court

JUDGMENTS – application to set aside orders of Court of Appeal – alleged fraud and conspiracy – untenable claim PLEADINGS – embarrassing and vexatious – amended statement of claim dismissed COUNSEL – duty to court – obligation to restrain clients – to limit waste of time and money

EQUITY – General principles – “Doing equity” – Plaintiff must demonstrate capacity to “do equity” by payment of purchase price for land alleged to be subject of constructive trust

PRODEDURE – Costs – where application to set aside Statutory Demand is unsuccessful – where the amount claimed in the Statutory Demand is nonetheless reduced.

GUARDIANSHIP — Protected person — Financial management — Change of manager — Order for discharge of private manager — Order for appointment of private manager — Principles governing a change of manager — Paramount consideration remains protection of welfare, and interests, of protected person — Prudential management requires flexibility, consultation with protected person and family, and respect for protected person’s autonomy. PROTECTIVE JURISDICTION – Protected person – Irregularities in original financial management order – Failure to reference NSW Trustee and Guardian Act 2009 – No declaration of incapacity – No management order expressly pursuant to s41 of NSW Trustee and Guardian Act 2009 – No appointment of manager expressly pursuant to s41 of NSW Trustee and Guardian Act 2009 – Accountability of manager – Availability of remedial orders.

CORPORATIONS – oppression suit – plaintiff and defendant sole directors and equal shareholders of proprietary company – no shareholders agreement –deadlock – whether defendant engaged in conduct contrary to interests of members as a whole or unfairly prejudicial to plaintiff

WILLS, PROBATE AND ADMINISTRATION – Application for either interim provision pending determination of family provision claim or further interim distribution – Probate and Administration Act 1898 (NSW) s 84 – Succession Act 2006 (NSW) s 62

Indemnity costs – offer of compromise – Calderbank offer – reasonableness of offer – reasonableness of rejection of offer Evidence – operation of section 131(2)(h) Evidence Act – relevance of offers made by plaintiff

SUCCESSION – Family Provision – claim by adult stepson – whether plaintiff eligible in category (e) – whether members of same household as deceased –whether dependent on deceased - whether circumstances warranting – whether left with inadequate provision – where deceased had received provision from plaintiff’s father’s estate to detriment of plaintiff

APPEAL – high risk violent offender –continuing detention order under the Crimes (High Risk Offenders) Act 2006 (NSW) – whether primary judge erred in determining the length of the continuing detention order – whether primary judge failed to give adequate reasons

CONTRACTS – general contractual principles – construction and interpretation of contracts – commercial context – where clause provides for payment calculated by reference to years of service with a Related Company as defined in Corporations Act 2001 (NSW) – where clause ambiguous in its operation and one construction would produce commercially incongruous outcome

CRIMINAL LAW – appeals – conviction – whether inconsistency of verdicts – 79 counts of fraud – whether sentence manifestly excessive.

CRIMINAL LAW - sentence appeal - robbery in company contrary to s.97(1) Crimes Act 1900 - suggested error in use of R v Henry guideline - suggested error in double counting fact that offence committed in company - claim that sentence manifestly excessive - no error demonstrated - appeal dismissed

CRIMINAL LAW – application for leave to appeal against sentence – seven historic sex offences – complainant aged between 6 and 10 at time of offending – whether sentence manifestly excessive – whether sentencing practice and patterns of the late 1980s taken into account in sentence – whether principle of general deterrence properly applied – whether appropriate weight given to applicant’s good character and his voluntary cessation of offending – whether complainant’s consent a relevant consideration – application for leave to appeal granted but appeal dismissed.

CRIMINAL LAW – conviction appeal – 14 counts of sexual assault – applicant convicted of 7 counts and acquitted of 7 counts – whether verdicts of guilty supported by evidence – whether inconsistent verdicts – ample evidence to support convictions – rational and logical explanation for not guilty verdicts – appeal against conviction dismissed.

SEPARATE QUESTION – whether court should order separate determination of matter said to be jurisdictional fact from rest of proceedings – whether “overlap in evidence” – whether likely to lead to reduction in court time – separate question posed for determination after all other issues in the proceedings

CRIMINAL LAW - murder trial - mother and stepfather charged with murder of three-year old son - Crown alleges that mother inflicted fatal injury to child with intent to kill or cause grievous bodily harm - Crown case that stepfather party to extended joint criminal enterprise with mother to harm the child with mother expressing desire to kill or harm the child - evidence will be before jury for other purposes - evidence that each accused struck and mistreated child over seven-week period before death of child - Crown seeks to rely upon this evidence for tendency purposes - application of ss.97 and 101 Evidence Act 1995 - held that evidence may be relied upon against mother for tendency purposes but not as against stepfather

PROCEDURE – Contempt, attachment and sequestration – Contempt of Court – Sentence – where Respondent caused company to breach an undertaking to the Court thereby knowingly impeding the administration of justice – where contemnor purged contempt after conviction – whether custodial sentence is appropriate.

PROCEDURE – interrogatories – Uniform Civil Procedure Rules – negligence – personal injury – special reasons – necessity

CRIMINAL PROCEDURE – application for discharge of the jury – where a Crown witness made certain statements in a walk through interview that would have been inadmissible in Court – where that Crown witness made gratuitous remarks in Court to the accused – where a direction was given that such remarks are not evidence and are to be ignored – whether a fair-minded observer would believe that the jurors could bring impartial minds to the case – direction given in relation to evidence held to be sufficient – application for discharge refused

PROCEDURE – expert evidence – case management – application by defendant for leave to serve expert report outside timeframe ordered by the Court – where the same defendant had already served reports of three experts in the same field of expertise – closeness to hearing – prospect of prejudice to other defendant

COSTS – where self-represented plaintiff seeking costs of retaining solicitor to assist preparation – defendant to pay the plaintiff’s costs

PRACTICE AND PROCEDURE – interlocutory injunction – application for the continuation of interlocutory injunctions to restrain breach of negative stipulations in a contract – whether there is a prima facie case of right – whether compelling discretionary reasons to decline to enforce a negative contractual stipulation – whether damages would be an adequate remedy for any breach – balance of convenience – general equitable principles

DEFAMATION – interlocutory injunction – ex parte proceedings – suppression orders – principles regarding interlocutory orders in defamation cases – serious question to be tried – defence of justification – defence of fair report – possible discretionary considerations – interlocutory relief granted – orders made