Cases and authorities

DISCIPLINARY ACTION – church – priest – catholic priest challenges finding by church body that he committed sexual abuse – complaint that priest sexually exploited adult parishioner – complaint referred for assessment under “Towards Healing” – assessors found complaint substantiated – report referred to Archbishop for further action – Archbishop contemplating removal of plaintiff’s faculties – alleged denial of natural justice – whether Court has jurisdiction to hear complaint – basis for interference with disciplinary actions of private bodies – relations between parties not contractual – no church property involved – not shown that plaintiff’s emoluments at risk – no threat to livelihood – potential damage to plaintiff’s reputation from dissemination of report not sufficient to confer jurisdiction to “review” process that lead to production of report – Court had no jurisdiction to intervene – proceedings dismissed.

CRIMINAL LAW – costs – application for certificate under s 2 of Costs in Criminal Cases Act 1967 (NSW) – where applicant convicted of 21 counts against 4 complainants – where on appeal, convictions were quashed, and verdicts of acquittal entered in respect of 8 counts, being those relating to 2 complainants, and an order for new trial made in respect of remaining counts – whether Court’s jurisdiction to grant certificate enlivened and precondition in s 2(1)(b)(i) satisfied – whether applicant “discharged as to the indictment” – whether s 2(1)(b)(i) requires that defendant be acquitted on appeal in relation to all counts charged by indictment presented at trial CRIMINAL LAW – costs – application for certificate under s 2(1) of Costs in Criminal Cases Act 1967 (NSW) – whether Court of opinion in s 3(1)(a)

CRIMINAL LAW – sentence appeal – serious drug offences – alleged disparity between applicant and co-offender – analysis of starting points of indicative sentences

CRIMINAL – appeal against conviction – whether Crown Prosecutor invited jury to draw adverse inferences by reason of applicant’s silence about certain matters – whether right to silence infringed

CRIMINAL LAW – sentence appeal – two counts of dishonestly obtain a financial advantage and fourteen counts of make and use a false instrument – whether finding of some degree of planning was open on the evidence – whether delay adequately taken into account – whether finding of a significant level of overall criminality was open on the evidence – cheques drawn for large sums of money – significant harm caused to victims – delay properly taken into account – modest sentence in all the circumstances – appeal dismissed.

CRIMINAL LAW – sentence appeal – plea of guilty to manslaughter due to a substantial impairment by an abnormality of the mind – applicant killed his 29 year old daughter – whether sentencing judge erred in assessing the level of mental impairment – whether adequate reasons given for his finding of the level of substantial impairment – whether mental illness properly taken into account when assessing objective seriousness of offending – medical evidence all one way – very substantial level of mental impairment – error made out – need to resentence.

CRIMINAL LAW – application for leave to appeal against sentence – aggravated break, enter and commit serious indictable offence (larceny) – whether applicant has a justifiable sense of grievance by reason of disparity with sentence imposed on co-offender – whether sentence manifestly excessive

CONVICTION APPEAL – manslaughter – altercation between two women leading to one stabbing the other – whether proper directions given as to manslaughter by excessive self-defence – whether if directions were erroneous a miscarriage of justice occurred – whether adequate directions given as to lies and consciousness of guilt – whether verdict unreasonable – conviction appeal allowed – Retrial limited to manslaughter ordered.

CRIMINAL LAW – leave to appeal and appeal against sentence – leave to appeal granted – whether sentence was manifestly excessive – purposes of sentencing – relevance of mental health condition – applicant’s desire for an extended period of supervision and mental health treatment – sentence for the firearms offence was not too high – overall lenient sentence was imposed – appeal dismissed

CRIMINAL LAW – appeal against sentence – supply prohibited drug on an ongoing basis – attempt to supply prohibited firearm – discount for guilty pleas not erroneously applied to aggregate sentence instead of indicative sentences –no failure to take into account the applicant’s subjective case – sentence not manifestly excessive – appeal dismissed

CRIMINAL Law – appeal against sentence – drug trafficking – methamphetamine – whether sentence manifestly excessive – comparative cases

PRACTICE AND PROCEDURE — Joinder — Application by third parties for joinder to proceedings — where application for joinder was made after conclusion of hearing and delivery of judgment – whether application for joinder ought to be granted. PROCEDURE — Judgments and orders — Application for stay of orders winding up company pending proposed appeal – whether interests of justice favour the grant of a stay – whether there are reasonable grounds for an appeal against the Court’s refusal to defer making winding up orders – whether application for stay ought to be granted.

PRACTICE AND PROCEDURE – Application for stay of proceedings until costs paid in previous proceedings – Subsequent proceedings substantially the same – Order made PRACTICE AND PROCEDURE - Application that plaintiff desist from communicating with defendant other than by email to nominated address – Whether order required for the speedy determination of real issues – Order made

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – final hearing – defendant poses unacceptable risk of committing serious sex offence – consideration of factors in s 9(3) of Crimes (High Risk Offenders) Act 2006 – appropriate period for ESO – relevance of secondary object of encouraging defendant to undertake rehabilitation – whether particular conditions appropriate – need to avoid ambiguity – extended supervision order made for maximum period of five years

COSTS – offers of compromise – “walk away” offer made by defendants – offer not accepted by plaintiff – defendants obtain order no less favourable than terms of offer – whether offer triggers prima facie entitlement to indemnity costs – Uniform Civil Procedure Rules 2005 (NSW) r 42.15A

PRACTICE AND PROCEDURE – claim for damages arising out of bodily injury where plaintiff’s injuries deprive him of capacity to prove how the accident happened – notice of motion seeking order for examination of deponent on grounds that answers to interrogatories insufficient – insufficiency demonstrated by reference to other statements of deponent – obligation on deponent answering interrogatories on behalf of corporate party to make enquiries and to answer to best of information, knowledge and belief – interests of justice favour order that second defendant provide further answers to interrogatories where original answers insufficient rather than make order for examination – direction that second defendant provide further answers to interrogatories

SUCCESSION – Family Provision – Eligible applicant – Adult Grandchild – Dependent or other person – Grandchild lived with deceased in a close personal relationship at the time of death – Family arrangement where grandchild lived with deceased for about a decade – Grandchild currently single parent caring for infant daughter and is unemployed – Grandchild eligible person and left without adequate provision SUCCESSION – Family Provision – Eligible applicant – Adult Child – Deceased left will with four children given equal shares – Applicant estranged from siblings –- Adequate provision made in Will – Application dismissed

PROCEEDS OF CRIME – whether proposed transfer of a registered mortgage concerning a residential property the subject of a restraining order under s 17 of the Proceeds of Crime Act 2002 would constitute a contravention of restraining order – whether such transfer would constitute a dealing within meaning of s 338 of the Act – terms of earlier variation order limited mortgage security – whether a transfer of existing mortgage to the applicant (a firm of solicitors) to whom the registered proprietor of the property was indebted to for legal fees would or would not have a direct or indirect effect of reducing value of defendant’s interest in the property in circumstances in which the limitation of $350,000 would apply and an order under the Act would be required before the property could be sold by the exercise of the mortgagee’s power of sale

Criminal Law – sentence - murder – found guilty at trial – only issue at trial substantial impairment – mental condition taken into account on sentence

NUISANCE – in the first judgment in the proceedings the defendant found responsible for a nuisance occasioned to the plaintiff’s land by dam constructed on the defendant’s land – disputes remain about the scope of the works required to abate the nuisance – whether the plaintiff’s or the defendant’s proposed solution to abate the nuisance should be adopted – other issues considered about the method of abatement of a nuisance caused by table drain.

REAL PROPERTY – possession of land – plaintiff is registered proprietor of land – defendant in occupation of land – past de facto relationship between the parties – plaintiff seeks summary judgment for possession – defendant subsequently commences proceedings in Family Court – conciliation conference in Family Court – whether parties agreed to stay Supreme Court proceedings – whether Family Court registrar made order for stay – whether registrar had power to make order - subsequent conduct of defendant inconsistent with agreement for stay – whether claim of de facto relationship was a defence to claim for possession – both parties desirous of sale of property – summary judgment for possession

SUCCESSION - Claim by a grandchild of the deceased for a family provision order under Part 3 of Succession Act 2006 - The Defendant, the executor named in the Will of the deceased, to whom Probate was granted, opposes Plaintiff’s claim – Whether Plaintiff an eligible person – If so, whether there are factors warranting the making of the Plaintiff’s application – If eligibility and factors warranting the making of application established, whether family provision order should be made REAL PROPERTY – Cross-Claim by executor to whom Probate granted for possession of land held in the name of the deceased – Cross-Defendant remains in possession of land owned after death of the deceased – No basis for Cross-Defendant to oppose orders – No defence to claim for possession PROCEDURE - Parties – Sole beneficiary of deceased’s estate seeks to be joined as party/Defendant to the Plaintiff’s proceedings - Application made shortly prior to the hearing but then not proceeded with

CRIMINAL LAW – arrest without a warrant – whether arrest lawful – construction of s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether arrest needed to be “necessary” for a purpose stated in sub-s 3 – state of mind required of arresting police officer – reasonableness of state of mind

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) Pt 1.2 Div 1 – blameless accident – where successful claim for damages against Nominal Defendant in lower court – whether respondent hit by motor vehicle or fell from balcony – where primary judge found collision with motor vehicle most likely cause of respondent’s injuries – where respondent found lying on footpath with serious injuries – challenge to factual finding of respondent’s rest position on footpath – whether inconsistent with witness and expert evidence – where competing witness evidence and police photographs of site of accident – challenge to factual finding of respondent’s belief he was hit by a car – where respondent gave contemporaneous account to police and hospital staff of going out to corner shop – credibility of respondent – whether primary judge erred in finding expert evidence of little assistance – consistency of expert evidence with nature of respondent’s injuries and other evidence TORTS - negligence - contributory negligence – Motor Accidents Compensation Act 1999 (NSW) s 138 – whether primary judge erred in finding contributory negligence by respondent and assessing reduction in damages at 50% – where finding that respondent’s failure to look caused accident – where relatively quiet street – where little otherwise known of circumstances of accident – whether assessment manifestly inadequate or excessive

ASSOCIATIONS AND CLUBS – Domestic tribunal – Jurisdiction of courts to interfere in decision of disciplinary committee – decision to suspend respondent show horse trainer from events after found in breach of disciplinary rules – where no contract between respondent and applicant agricultural society or other private law right as basis for court’s jurisdiction to grant relief – whether decision amenable to orders in the nature of certiorari for jurisdictional review or to private law remedies such as declaration or injunction JUDICIAL REVIEW – reasonable apprehension of bias – where decision to suspend respondent trainer after horse tested positive for prohibited substances – where member of disciplinary committee determining penalty involved in selecting horse for testing and overseeing horse swabbing procedure and sample testing procedures – whether fair-minded observer might reasonably apprehend decision-maker might not apply an impartial mind – whether member had an “interest” in the process akin to that of a prosecutor that might cause him to deviate from proper decision-making

CRIMINAL – conviction appeal – grievous bodily harm with intent – where appellant bit off victim’s nose – where self-defence raised – where error in trial judge’s summing up because of reference to requirement at common law that there be “reasonable grounds” for belief as to necessity of conduct in self-defence – whether proviso applies – whether Court satisfied that not open to a jury to have reasonable doubt as to whether appellant acted in self-defence

CRIMINAL – sentence appeal – ongoing supply of prohibited drug – supply of prohibited drug – error in calculation of commencement date – whether sentence is manifestly excessive – commencement date adjusted – appeal otherwise dismissed

CRIMINAL LAW – appeal against conviction – dishonestly obtain financial advantage by deception – Crimes Act 1900 (NSW) s 192E(1)(b) – appellant opened “Complete Freedom” savings account with bank – account very substantially overdrawn over many months – bank charged interest and fees on overdrawn amount throughout period – whether terms and conditions provided for bank to permit account to be overdrawn – whether appellant was authorised to borrow overdrawn funds – whether additional element of deception in offence – conviction quashed

PRACTICE AND PROCEDURE – Whether leave to file Second Cross-Claim should be granted – whether leave should be granted to bring derivative action.

CRIMINAL LAW – murder - sentencing hearing after conviction at Judge-alone trial - Offender convicted of murder of former wife of Man Haron Monis - Offender and Monis in relationship at time of murder - Monis planned murder and put it into effect with Offender carrying out murder - defence tender on sentence of affidavit of Offender’s daughter indicating that Monis was physically and emotionally abusive towards Offender - Crown objection to tender - affidavit of daughter based upon her own observations - evidence admissible - limited use to be made of this evidence in absence of any evidence from Offender concerning these matters

CORPORATIONS — voluntary administration — application by administrators of company under s 447C of the Corporations Act 2001 (Cth) – where administrators sought declaration that their appointment as administrators was valid – where defendant contended that appointor was not entitled to appoint the administrators under s 436C of the Corporations Act 2001 (Cth) – whether appointor was not “entitled to enforce” its security interest for the purposes of s 436C of the Corporations Act 2001 (Cth) by reason of s 8 of the Farm Debt Mediation Act 1994 (NSW) – whether appointment of an administrator is an “enforcement action” for the purposes of s 6 of the Farm Debt Mediation Act 1994 (NSW).

COSTS – where applicant subject of freezing order – where main proceedings in which applicant not a party dismissed – whether applicant an “innocent third party” – appropriate costs orders – whether costs should be paid on an indemnity basis

CRIMINAL LAW – application for extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 9 – whether extended supervision order should be made – whether 5 years is an appropriate period – whether the proposed conditions are appropriate

CRIMINAL LAW – application for determination of life sentences imposed in 1985 - four counts of murder and one of wounding with intent to murder - first determination application refused in 1994 - second application withdrawn in 2008 - third application filed in 2015 - application for leave to withdraw application - requirement for leave under Clause 6A of Schedule 1 to the Crimes (Sentencing Procedure) Act 1999 as amended in 2008 - Crown opposes leave to withdraw - factors relevant to leave decision - past withdrawal and prior refused application - impact of further uncertainty upon families of victims - whether further delay before application can be brought would be purposeful - leave to withdraw application refused

SEPARATE QUESTION – plaintiff landlord challenge to expert determination made under Deed of Agreement for Lease – determination final and binding unless subject to manifest error – defendants’ cross claim seeks to enforce determination and obtain further relief – hearing of all issues arising on plaintiff’s summons severed from rest of proceedings – plaintiff sought to argue whether Determination made in accordance with Deed at different time to whether manifest error – in substance plaintiff re-litigating matter already determined – whether one party to Deed can refer dispute for determination without agreement of other – whether breach of procedural fairness in making of Determination – whether cross claim raised issues that had to be determined by expert – summons dismissed – cross claim not stayed.

PROCEDURE – extension of time for service of statement of claim – whether to discharge extension under UCPR r 12.11(1)(e.

ADMINISTRATIVE LAW – Workers Compensation appeal – leave sought to file application out of time – leave granted – order sought to set aside Appeal Panel’s medical assessment certificate and statement of reasons – procedural fairness – inadequate reasons – orders sought made

CRIMINAL LAW – appeal against sentence – armed robbery with wounding – Crimes Act 1900 s 98 – no failure to identify and assess factors relevant to the objective seriousness of the offence – no failure to give effect to a finding of special circumstances in imposing a sentence partially accumulated on a balance of parole – no error in having regard to the victim as a “vulnerable person” in the circumstances – appeal dismissed

CRIMINAL LAW – appeal against sentence –wounding with intent to cause grievous bodily harm –whether sentencing judge made House v The King errors in her factual findings – where parties presented two irreconcilable accounts of the critical facts – no error shown – appeal dismissed

CRIMINAL LAW – sentencing - appeal – severity of sentence – Crimes Act 1900 (NSW) s 61M(2) – guilty plea to three indecent assault offences and two similar Form 1 offences – where victims aged 6 and 9 years – sentences imposed while applicant serving existing sentence for unrelated conviction for aggravated sexual intercourse under s 61J(1) – where unrelated victim aged 11 years – where new sentences wholly cumulative on non-parole period of first sentence – whether totality principle not applied by sentencing judge – applicant of advanced age and ill-health with short life expectancy – need for sentence to reflect overall criminality CRIMINAL LAW – sentencing – appeal – whether sentences manifestly excessive – where finding that offending particularly serious – vast age discrepancy between applicant and victims – where aggravating factor – abuse of position of trust and authority – psychological and physical coercion – offences not isolated – brazen – separate victims – vulnerable due to young age – where degree of concurrency allowed – objective gravity of total criminality – whether accumulation on existing sentence or between new sentences unreasonably high – whether sentences unreasonable or plainly unjust

CRIMINAL LAW – sentence appeal – serious offences of manufacture and supply with respect to methylamphetamine and heroin – whether sentencing judge was sufficiently precise in assessment of objective seriousness – whether mistaken belief of an applicant that a precursor was being supplied was taken into account – whether failure to state starting points of indicative head sentences established material error – appeal dismissed

POSSESSION – where defendant consents to vacation of property but seeks an order as to the period of vacation – whether 28 days from exchange of contracts of sale would be a reasonable period

PRACTICE AND PROCEDURE – Application for transfer of proceedings to the Supreme Court of Victoria – Whether interests of justice warranted transfer – No point of principle

CORPORATIONS — Deed of company arrangement — Leave sought under s 444E(3) of the Corporations Act 2001 (Cth) to continue proceedings against company in deed administration – where there was dispute as to terms of the company’s insurance policy – where if leave were not granted there would be possibility of inconsistent results between proof of debt process and the proceedings against another defendant – whether leave ought be granted under s 444E(3)(c) of the Corporations Act 2001 (Cth).

INTEREST – calculation of interest up to judgment – parties directed to calculate interest up to judgment – dispute as to whether interest up to judgment should be calculated from approximately the time of judgment or a significantly earlier date.

CORPORATIONS – winding up – voidable transactions – Corporations Act 2001 (Cth), s 588FF(1) empowers court to make orders in respect of voidable transactions upon the application of a company’s liquidator – s 588FF(3) imposes time limit for bringing of application – whether time limit in s 588FF(3) applies in relation to each individual transaction that the liquidator seeks to impugn CORPORATIONS – winding up – voidable transactions – application for orders pursuant to Corporations Act 2001 (Cth), s 588FF(1) in respect of voidable transactions – procedural conduct of matters left to state law – whether Civil Procedure Act 2005 (NSW), ss 64 and 65 “picked up” by Judiciary Act 1903 (Cth), s 79 – whether Corporations Act, s 588FF(3) “otherwise provides” such that powers of amendment under Civil Procedure Act not “picked up”

CORPORATIONS — Winding up – Application to terminate winding up – where application made by court-appointed liquidators – where co-operative apparently solvent and likely to remain solvent – where debts paid or likely to be paid – where creditors do not oppose application

LANDLORD AND TENANT – retail and commercial tenancies legislation – alleged creation of oral retail lease – whether serious question as to whether a retail lease existed between plaintiff and registered proprietor – whether serious question as to whether a retail lease existed between plaintiff and head lessee

CORPORATIONS – members’ rights and remedies – dividend – meaning of “declare” in company’s constitution – construction of terms of Shareholders Agreement COSTS – apportionment – where result not involve acceptance of either party’s position – where plaintiff substantially succeeded – where severable issue belatedly abandoned by plaintiff – allocation of costs should reflect relative responsibility of parties

TORTS – defamation – news broadcaster published statements that plaintiff was driver of motor vehicle involved in a fatal accident – uncertainty about identity of driver – plaintiff waited until Coroner’s report before commencing action – action commenced out of time LIMITATION OF ACTIONS – defamation – application to extend one year limitation period – s 56A Limitation Act 1969 – whether it was not reasonable in the circumstances for the plaintiff to have commenced the action in one year from the date of publication – delay after one year in commencing action – whether discretion to extend time beyond one year – test for extending time beyond one year – whether “not reasonable” test applicable – failure to explain delay subsequent to one year from publication – effect of such failure PROFESSIONS AND TRADES – lawyers – duties – Legal Profession Act 2004 s 345 – whether proceedings enjoyed reasonable prospects of success without Coroner’s decision