Cases and authorities

PRACTICE AND PROCEDURE – transfer of proceedings – application to transfer proceedings in Local Court to be heard with recently commenced proceedings in Supreme Court – whether issues in Supreme Court will cast light on issues in Local Court and vice versa – whether possible issue estoppels a basis for transfer – Local Court proceedings fixed for hearing in near future – unexplained delay in commencing Supreme Court proceedings and bringing application for transfer

COSTS – departing from the general rule – indemnity costs order sought – failure to conduct litigation in accordance with its statutory obligations – Calderbank offers – discretion to make indemnity costs order established – orders made

ADMINISTRATIVE LAW – prerogative writs – certiorari – jurisdictional error – applicant convicted by Local Court of offence of aggravated indecency – severity appeal against sentence to District Court – Crimes (Appeal and Review) Act 2001 (NSW), s 11, s 17 – where applicant’s lawyer sought adjournment to obtain and tender Local Court transcript of conviction hearing – whether primary judge committed jurisdictional error in misapprehending the nature of the power exercised pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 17 CRIMINAL LAW – appeal to District Court against sentence imposed in Local Court – Crimes (Appeal and Review) Act 2001 (NSW), s 17 – appeal to be by way of a rehearing of "the evidence given in the original Local Court proceedings" – whether evidence given at the hearing to determine guilt necessarily part of the evidence at the sentence hearing STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 17 – whether sentence appeal to District Court in nature of hearing de novo

CRIMINAL LAW – sentencing – sexual intercourse without consent – victims with disability – discounts for confession and for plea on arraignment

ADMINISTRATIVE LAW – judicial review of decision of NCAT member – where parties agreed that relief sought should be granted – where relief discretionary and Court must be satisfied that it is appropriate to make the orders sought

PROCEEDS OF CRIME – restraining order – no question of principle

PROBATE – plaintiffs sought to revoke grant of probate to the executor – whether the executor had properly administered the estate – amongst other things, the executor failed to realise estate assets in a timely fashion, paid himself commission without authorisation, failed to properly maintain accounts, and there exists a conflict between the executor’s personal interest and the administration of the estate in relation to certain shares – held there is a failure by the executor to properly administer the estate – held grant of probate of the will of the deceased made to the executor be revoked – held executor to pay the plaintiffs’ costs and no indemnity from trust allowed

CRIMINAL LAW – murder – special hearing – defence of mental illness established – verdict – not guilty on the ground of mental illness – order under s 39 of the Mental Health (Forensic Provisions) Act that accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law – special verdict entered – orders made

PRACTICE – costs – multiple parties – varying degrees of success – offer of compromise

CRIMINAL LAW – appeal against sentence – child sexual assault – significant delay – applicant sentenced on the basis that he had a prior conviction for child sexual assault – where prior conviction quashed on appeal after sentencing for present offences – prior conviction had no impact on sentence – judge not made aware of applicant’s assistance to authorities – new evidence of assistance received – assistance worthy of reduction in sentence – applicant re-sentenced – appeal allowed

CRIMINAL LAW – sentence appeal – supplying large commercial quantity of prohibited drug - knowingly dealing with the proceeds of crime – possessing a prohibited weapon – aggregate sentence passed – indicative sentences of imprisonment for all three offences – whether aggregate sentence excessive – focus on whether custodial sentence warranted for possessing prohibited weapon

CRIMINAL LAW – conviction appeals – offence of murder – extended joint criminal enterprise – group of young males assault victim at party who subsequently dies – APPLICATION BY AE – whether jury’s verdict was unreasonable and cannot be supported by the evidence – AE identified by two witnesses as part of offending group – difficulties in identification evidence – advantage of jury in assessing witnesses – whether appropriate directions given by judge concerning identification evidence – comprehensive directions given with the authority of the court – whether appropriate directions given concerning extended joint criminal enterprise – conviction appeal dismissed – APPLICATION BY MG – whether verdict was unreasonable and could not be supported having regard to the evidence – no evidence of identification – Crown case based entirely on circumstantial evidence – jury in no better position than appellate court in assessing evidence – reasonable scenarios consistent with innocence available to applicant – conviction appeal allowed.

JUDICIAL REVIEW – decision of Assessor refusing to exempt claim from CARS assessment – insurer alleged plaintiff made false and misleading statements about extent of his injuries – insurer relied on allegedly inconsistent statements made by insured but did not specify which were misleading – alleged Assessor failed to address insurer’s claim for exemption because of failure to identify which statement was misleading – HELD: Assessor reasoned that failure to identify which statements were misleading meant not satisfied matter unsuitable for CARS Assessment – no error shown

CRIMINAL LAW – tendency evidence – accused charged with murder – crown case that accused engaged particular person to shoot victim – undisputed evidence that accused had on a previous occasion engaged the same person to shoot a different person – whether tendency evidence – where motive for shootings completely different – first shooting committed in self-defence – second shooting alleged contract killing – Brothers for Life – whether tendency alleged of too general a nature – whether particulars of tendency artificially constructed – significant probative value – prejudicial effect on accused – high hurdle for admissibility – where trial by Judge alone – less capacity to cause prejudice – probative value substantially outweighs prejudical effect evidence may have – evidence admissible

REAL PROPERTY – options and agreements to purchase – construction of particular agreements – Put and Call Option Deed contained right of first refusal – options not exercised within stipulated periods – whether right of first refusal continues to operate

EQUITY - equitable remedies - Plaintiffs sought declaration that the legal title to the estate in remainder (after grant of life estate by Deed) held on trust for first Plaintiff - whether equity would perfect a gift of real property – no gift as donors had not done everything necessary for them to have done to effect a transfer of legal title – Relevance of Deed between parties granting life estate ESTOPPEL - whether Defendant is estopped from denying that legal title to the estate in remainder held on trust for first Plaintiff – no reliance by first Plaintiff on any assumption – no representation that property held on trust – Relevance of Deed granting life estate of the real property – Terms of Deed inconsistent with any representation – Whether terms superseded any agreement to transfer real property

CRIMINAL LAW – Murder – above the midline of objective seriousness – Aggravated armed robbery - slightly below the midline of objective seriousness – whether aggravating and mitigating factors referred to in ss 21A(2) and (3) of the Crimes (Sentencing Procedure) Act – aggregate sentence pursuant to s 53A (2) – High Risk Offender

CRIMINAL LAW – trial by judge alone – application by accused opposed by the Crown – interests of justice – relevant factors – prejudicial material – media coverage – measures available to ensure jury not affected by prejudicial publicity – prejudicial material to be adduced in the trial – where evidence will establish earlier killing by same accused – part of evidence led as tendency evidence – evidence subject to objection – whether mode of trial influences question of admissibility of evidence – which issue should be determined first – chicken or egg – where accused raised self-defence in respect of the earlier killing – difficulties in formulating directions – accused required to re-run its defence of self-defence – forensic minefield – where jury currently deliberating on charges arising out of earlier killing – risk of two juries coming into contact – measures incapable of eliminating risk – public houses – problems in delaying commencement of trial – where trial Judge made previous rulings on credibility and character of witnesses – enigmatic submission by Crown – no application or basis for recusal or disqualification – application granted

PROCEDURE – late application to vacate hearing – where new relevant and material evidence received – obtaining of instructions hindered – no explanation as to why – application to set aside creditor’s statutory demand only – held, insufficient ground to vacate CORPORATIONS – winding up – setting aside creditor’s statutory demand – whether s 459G application duly made within 21-day period – service of document sent by post – absent evidence to contrary, delivery presumed on fourth working day after document posted – personal service of originating process and affidavit – documents brought to attention of defendant – held, application duly made within 21-day period – whether there is genuine dispute as to existence of debt –whether there is plausible contention warranting further investigation – plainly dispute as to existence of debt – evidence provides alternative explanation – held, defendant may have arguable case for debt claimed but does not eliminate plausible contention

Dismissal – statutory exemption of obligation to provide reasons – contention that decision invalid because reasons not provided unarguable – no question of principle

Motion to strike out Defence – asserted Defence based on evidence that could not be true – argument untenable – still no question no principle

PRACTICE AND PROCEDURE – costs – separate question – costs order in favour of plaintiffs by decision by Court of Appeal – whether those costs should be payable forthwith; PRACTICE AND PROCEDURE – disclosure of documents before delivery of statements – whether exceptional circumstances shown for purposes of Practice Note SC Eq 11 – whether disclosure before statements would reduce likelihood of experts serving multiple reports

HIGH RISK OFFENDER – Application for Extended Supervision Order – Whether defendant a high risk violent offender – No point of principle

TORTS - negligence – vehicle turning into driveway on country road – collision with overtaking cyclist – whether driver of vehicle negligent by failing to look in rear vision mirror before turning – whether primary Judge erred in finding that right hand indicator activated late – whether driver was negligent if indicator activated earlier than primary Judge found.

TORTS – contributory negligence – collision between motor vehicle leaving driveway and motorcycle driven by postman – breach of duty by driver of motor vehicle conceded – whether primary Judge erred in finding no contributory negligence – whether primary Judge erred in findings as to the motor vehicle’s speed and the postman keeping a proper lookout DAMAGES – whether primary Judge erred in assessing damages for future economic loss – whether primary Judge applied the principles stated in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

CONTRACTS –– breach of contractual warranties – misleading and deceptive conduct – contractual sale of printing business – where vendor misrepresented income of the business by disguising machinery sales as printing sales in the Profit and Loss Statement (‘P&L’) provided to purchaser prior to completion of sale – where fictitious invoices were created by vendor to mask misrepresentation – where vendor admitted to creating some of the fictitious invoices – whether further invoices fictitious – whether purchaser relied on the representations as to income in purchasing business – CONTRACTS – interpretation – implication of terms – where contract provided that vendor loan funds to purchaser to facilitate the sale of the business – where contract provided loan amount to be repaid with interest 90 days after completion – where no provision in contract for interest payable in event of default – whether term can be implied that parties intended interest to continue to accrue at the pre 90 day rate – PRACTICE AND PROCEDURE - whether on proper construction of pleadings it was necessary for purchaser to prove that fictitious invoices themselves and not merely their amounts were included in the P&L

APPEAL – leave to appeal – subject matter confined to costs – applicable test – no issue of principle or question of public importance or reasonably clear injustice

PRACTICE – where order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 (Teoh Order) made – where applicant filed further notices of motion subsequent to Teoh Order – whether applicant had shown cause in writing why the motions should not be dismissed as vexatious and abuse of process – whether written submissions demonstrate basis for listing motions for hearing – motions dismissed

PRACTICE – review of decision of single judge of appeal – Supreme Court Act 1970 (NSW), s 46(4) – whether court properly constituted by single judge – whether denial of procedural fairness – whether judge erred in principle or decision plainly wrong PRACTICE – inherent jurisdiction of court – abuse of process – where applicant sought to re-agitate issues finally determined in principal proceedings – where applicant made repeated applications for orders already rejected on previous applications – where applicant asserted entitlement to persist in making applications – where order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 – principle of finality – Court’s exercise of inherent powers to prevent abuse of process LAW REFORM – Civil Procedure Rules 1998 (UK), r 3.11 – Practice Direction 3C (Civil Restraint Orders) – recommendation Rules Committee consider similar rule and practice direction

PRACTICE AND PROCEDURE – Application for leave to appeal against unsuccessful application under UCPR, r 36.15(1) to set aside consent orders made in Land and Environment Court – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether a party and her agents were mistaken as to the purport of the solution – whether there had been fraud – alleged failure by primary judge to give adequate reasons for rejecting fraud allegations – whether Briginshaw principles for civil allegations of fraud correctly applied – whether primary judge erred in exercise of discretion in excluding evidence of important witnesses – whether primary judge’s reasons disclosed reasonable apprehension of bias JUDICIAL REVIEW – Appeal against unsuccessful application for prerogative relief to set aside consent orders made in civil enforcement – grounds for judicial review the same as application under UCPR, r 36.15 COSTS – application for leave to appeal against successful application by the successful parties to substantive litigation against the unsuccessful parties for costs on an indemnity basis

PRACTICE AND PROCEDURE – Court Suppression and Non-publication Orders Act 2010 (NSW) – application for take down order – applicant charged with sexual assault offences – applicant subsequently charged with separate sexual assault offences – online publications referring to second set of offences – accessible via search engine – application for removal of applicant’s name from online publications during trial for first set of offences – whether order “necessary” to prevent prejudice to the proper administration of justice – whether risk that jurors would defy judicial directions by conducting investigations – whether orders futile or ineffective – effect on search engine results of removal of selected publications

CRIMINAL LAW – sentence appeal – one count of supplying an amount not less than the commercial quantity of methylamphetamine – one count of supplying a prohibited drug, namely 3,4-methylenedioxy-methamphetamine – one count of supplying a prohibited drug, namely ketamine – one count of supplying a prohibited drug, namely cannabis leaf – whether the judge took into account the wrong maximum penalty when determining the appropriate sentence – whether the judge failed to give proper consideration to the seriousness of each offence – delay between commission of offences and arrest – whether the judge erred in taking into account half of the period between the commission of the offence and the applicant’s arrest – re-sentence

EQUITY – equitable remedies – injunctions – where previous orders contained no express carve-out for reasonable legal expenses – significant legal costs incurred at early stage and now additional proceedings brought – general proposition freezing order should not prevent payment of legal costs and expenses reasonably incurred – does not mean express carve-out for legal costs required if practical effect of order is not to prevent payment – proposition at strongest where freezing order granted in aid of claim for unsecured debt or damages – previous judgment made clear that carve-out not required – structure of parties involved in proceedings are such that two-thirds of what trustee of trust receives will be available for distribution

FORENSIC PATIENTS – defendant found unfit to be tried – limiting term due to expire – application to extend status as a forensic patient – interim extension order – whether defendant poses unacceptable risk – whether risk cannot be adequately managed by other means

Referral to pro bono panel – no question of principle

CONTRACT – formation – whether agreement made to settle proceedings – offer for settlement of proceedings accepted – whether parties intended to be contractually bound upon acceptance – whether agreement liable to be set aside because unconscionable – Civil Procedure Act 2005 (NSW) s 73

CRIMINAL LAW – Practice and Procedure – Subpoenas – Claim for public interest immunity

COSTS – application for indemnity costs – notice of motion founded on advocate’s immunity – whether motion so lacking in merit as to call for indemnity costs

DEFAMATION – appeal – where defence of failure to accept reasonable offer to make amends upheld at trial – Defamation Act 2005 (NSW) s 18 – challenge to primary judge’s finding that offer of amends was reasonable – challenge to finding that defence was available - objective test of reasonableness – s 18(1)(c) – where appellant’s willingness to accept offer after withdrawal by respondent sole consideration identified by primary judge – whether offer reasonable – seriousness of defamation and damage to appellant – adequacy of monetary compensation offered – significant disparity between prominence of defamatory matter and proposed apology – whether defence of failure to accept offer of amends required publication of an apology – construction of s 18(2) – whether respondent made offer as soon as practicable – whether subsequent withdrawal of offer precluded respondent’s defence at trial – where letter stated offer open until first day of trial unless withdrawn in writing – where offer withdrawn in writing after eight months DEFAMATION – appeal – identification – challenge to primary judge’s factual finding that defamatory matter identified appellant– whether matter complained of was published of and concerning the appellant– where article under prominent and sensational headline and containing appellant’s name, trade and location – where also containing incorrect age and photograph – where evidence of appellant carrying on trade and advertising in district since 1970s – whether ordinary reasonable reader would understand article as referring to the appellant – standards of ordinary reasonable reader – probability of two people in same district with same name carrying on same trade – whether appellant required witness evidence of identification – where finding by primary judge that appellant identified by name in article – reasonableness of appellant’s witnesses’ evidence

CRIMINAL LAW – conviction appeal – discharge firearm at dwelling house – where applicant pleaded guilty on basis of incorrect legal advice – no evidence applicant had requisite intent for subject offence – Crown conceded error – matter remitted to District Court for hearing de novo

ADOPTIONS – Adoption Act, 2000, s 67(1)(a) - application to dispense with the consent of the father of children proposed for adoption – whether the father cannot after reasonable enquiry be found or identified – evidence of reasonable enquiry inadequate – whether a preliminary hearing should be appointed under Adoption Act, s 80 for the return of subpoenas to assist in searches for the father.

Judge alone trial – not guilty by reason of mental illness – special verdict

CORPORATIONS — Winding up — Application by plaintiff to wind up company on grounds of insolvency – where company failed to comply with creditor’s statutory demand issued by plaintiff where the debt specified in demand related to judgment debt owing to plaintiff – where instalment order was made in respect of the judgment debt subsequent to commencement of the winding up application – where plaintiff sought to wind up company relying on the presumption of insolvency arising from company’s failure to comply with creditor’s statutory demand – whether evidence led by company rebuts presumption of insolvency – whether court should exercise its discretion not to wind up company in circumstances where company’s solvency is not established.

SEPARATE ISSUE – worker injury claim – claim against employer of host employee – cross-claim for contribution and contractual indemnity – insurer provides cover for plaintiff’s claim and contribution claim but not indemnity – whether contractual claim can be severed from other claims

CRIMINAL LAW – Appeal from Magistrate – Where Magistrate made an order for the carrying out of a non-intimate forensic procedure – Where a previous DNA sample of the accused had been taken 14 years ago – Whether there was a public interest in making the order – Whether Magistrate erred in making the order – Proceedings dismissed WORDS AND PHRASES – “evidence as to whether or not the suspect committed the alleged offence”

TAXES AND DUTIES — Payroll tax — Exemption — Clause 12(1)(c) of Sch 2 of the Payroll Tax Act 2007 (NSW) — Whether plaintiff is a school or college within the meaning of cl 12(1)(c) — School-type activities the predominant and characteristic activity of the plaintiff — Wages paid or payable by the plaintiff not exempt wages

PRACTICE – pro bono referral – whether referral in interests of justice – where applicant has previously received referral – scope of pro bono referral scheme – whether referral appropriate in relation to special leave application

APPEAL – practice and procedure – summary dismissal of proceedings as statute barred by reason of Limitation Act 1969 (NSW), ss 14 and 63 – whether primary judge erred in finding that claim as pleaded so obviously untenable that should be summarily dismissed

CRIMINAL LAW – sentence appeal – offender pleaded guilty to one count of wound with intent to murder – failure by sentencing judge to quantify the discount to be afforded to the offender for assistance to authorities – ground of appeal conceded by Crown – need to re-sentence – on re-sentence a lesser sentence warranted in law.