Cases and authorities

CRIMINAL LAW – appeal – appeal against sentence – attempted armed robbery with offensive weapon – break enter and steal – sentencing judge finds as aggravating factors elements of the offence – sentence backdated to take account of time spent in rehabilitation – applicant released to bail at time of sentence on lodgement of appeal leaving 67 days to serve – delay in prosecuting appeal - applicant on conditional liberty for more than two years before appeal – re-sentence – progress towards rehabilitation – whether appropriate to return applicant to custody for short period – intensive correction order imposed

CRIMINAL LAW – appeal – appeal against sentence – sexual assault – aggregate sentence exceeded the sum of the indicative sentences – whether indicative sentences represent non-parole period or whole sentence – re-sentence – totality principle – offender serving prior sentence – continued incarceration for more than 13 years for persistent similar offending - delay in prosecution – ‘cold case’ notification 20 years after offences – progress towards rehabilitation

WORK HEALTH AND SAFETY ACT – work experience student suffered flash burns to his eyes when welding without lowering his protective visor – where judge at first instance dismissed charges pursuant to s 10 Crimes (Sentencing Procedure) Act – whether extraordinary or exceptional circumstances shown – whether victim’s prior training/experience diminishes respondent’s statutory obligations to instruct and advise of risk – extent to which compensation in related civil matter bears upon the formulation of criminal sanctions – whether sentence manifestly inadequate – application of principles of specific and general deterrence – where respondent company in liquidation – importance of general deterrence in matters of industrial safety – application of residual discretion – contrition and remorse – public need for retribution

CRIMINAL PROCEDURE – application to discharge jury on account of Crown address causing miscarriage – application refused – miscarriage can be overcome by appropriate directions.

JUDICIAL REVIEW – workers’ compensation – appeal against decision of Appeal Panel – Appeal Panel set aside Medical Assessment Certificate of approved medical specialist – scope of Appeal Panel to re-assess whole person impairment – whether jurisdiction of Appeal Panel to reissue a Medical Assessment Certificate is limited to only those portions of assessment which were disputed on appeal – distinction between decision to revoke and decision to issue a new certificate – Workplace Injury Management and Workers Compensation Act 1988 (NSW), ss 287, 278

HIGH RISK SEX OFFENDER – application for Extended Supervision Order – no question of principle

PRACTICE AND PROCEDURE — Application for leave to join defendants pursuant to r 6.19 of the Uniform Civil Procedure Rules 2005 (NSW) – where plaintiffs sought leave nunc pro tunc to join defendants to proceedings while not conceding such leave was necessary – where the proceedings against each of the defendants involved common issues as to solvency of a company – whether the Court should exercise discretion to grant leave to join defendants in circumstances where there is common issue as to solvency. PROCEDURE — Costs — where plaintiffs sought orders that defendants be joined in proceedings – where plaintiffs initially indicated leave was not required to join defendants but later sought leave while not conceding such leave was required – whether costs order should be made in circumstances where any such order would require differentiation between issues.

ARBITRATION – where parties have bifurcated claims – where issues in arbitration must await outcome of proceedings in Court – where application made to Emergency Arbitrator – whether injunction should be granted to defendant to facilitate further application to Emergency Arbitrator

CRIMINAL LAW – application pursuant to s 78(1) Crimes (Appeal and Review) Act for an enquiry into conviction for common assault – where three applications previously dealt with under Part 7 of the Act – where Supreme Court not satisfied that there are special facts or special circumstances to justify the taking of further action – whether Supreme Court should refuse to consider or otherwise deal with the application – application refused

RELEASE APPLICATION – charged with being a member of a proscribed terrorist organization, the Kurdistan Workers’ Party (PKK) – rebuttable presumption against bail being granted to a person charged with terrorism offence – threats in custody - no threat to the Australian community – whether the exceptional circumstances to justify grant of bail exist – whether unacceptable risks are capable of being mitigated with conditions - release application granted

CRIMINAL LAW – remarks on sentence – offender found guilty of being an accessory after the fact to murder – multiple instances of assisting co-offender after murder – determination of point at which the offender became aware that a murder had been committed – offender aged 20 years at time of offence – no prior criminal record

CRIMINAL LAW – SENTENCE – murder – s 18 Crimes Act 1900 (NSW) – multiple stab wounds causing death - plea of guilty – question of timing of plea at trial – discount for guilty plea - offender with history of domestic violence – post traumatic stress disorder – question of causal link – history of drug use - question of special circumstances

HIGH RISK OFFENDER – final hearing – application for extended supervision order – high risk sex offender – terms of proposed conditions – order made

CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 (NSW) – application for extended supervision order – final hearing – length of order only substantive issue – defendant poses unacceptable risk of committing serious sex offence – consideration of factors in s 9(3) of Crimes (High Risk Offenders) Act 2006 (NSW) – extended supervision order made for maximum period

BAIL – fraud – use carriage service to threaten harm – offences allegedly committed whilst on bail – show cause requirement – strength of Crown case – delays in bringing to trial – mental health concerns not addressed in custody – treatment available in outside facility

REPRESENTATIVE ACTION – costs – notice of motion seeking an order for security for costs –allocation of risks of litigation

GUARANTEE – whether plaintiff’s right of recovery under guarantee limited by reason of alleged representation – whether claim is statute-barred

APPEAL – leave to appeal and appeal against Local Court decision – leave to appeal granted – offence under s 316(1) of the Crimes Act 1900 (NSW) – whether the offence charged is valid – whether an offence under s 81 is a “serious indictable offence” as defined in s 4 of the Crimes Act – whether the evidence is incapable of proving the offence charged - whether the appeal raises a question of law alone – s 53(3)of the Crimes (Appeal and Review) Act 2001 (NSW) – established – appeal dismissed STATUTORY CONSTRUCTION – s 81 Crimes Act 1900 (NSW) – s 316(1) of the Crimes Act 1900 (NSW) – s 580 of the Crimes Act 1900 (NSW)

CONTEMPT – where appeal from findings of contempt – where punishment imposed is fixed terms of imprisonment – where by motion in appeal proceedings, appellants apply under Supreme Court Rules Pt 55 r 14 for orders discharging and releasing each of them from prison – whether changed circumstances, including compliance with relevant orders of the Court, acknowledgment of seriousness of contempts and contrition, justify orders for release

COSTS – application for leave to appeal from interlocutory decision dismissed ‑ s 98 Civil Procedure Act 2005 – claim for lump sum costs order

CORPORATIONS – winding up – application seeking substitution of a defendant – whether (NSW) Civil Procedure Act 2005, s 65, applies – whether there was a mistake that was one of misnomer – intention of liquidator when proceedings instituted – no testimonial evidence of liquidator as to who he intended to sue or characteristics of that person – held, on available evidence, no mistake of misnomer.

PRACTICE AND PROCEDURE – criminal – where two juries discharged in the first week of criminal trial – where many of the witnesses to be called reside in the area where the trial is to take place – whether it is expedient to change the venue of the trial

DEFAMATION – non-appearance of plaintiff – orders under s 61 of the Civil Procedure Act 2005 to provide essential material that had not for some period been served in accordance with previous directions – notice of dismissal pursuant to s 63 of the Civil Procedure Act 2005 – summary dismissal effected.

CRIMINAL LAW – evidence given at NSW Crime Commission – application for evidence to be produced to the Court – witness to be called by the Crown – whether it “may be desirable in the interests of justice” for material to be produced to the parties – certificate given to the Commission

Costs – interlocutory proceedings – all costs are costs in the cause – no question of principle

EQUITY – equitable remedies – injunctions – application for interlocutory injunction restraining completion of contracts for sale – contracts entered into by mortgagee in possession – whether serious question to be tried as to existence of power of sale – whether balance of convenience against grant of interlocutory relief REAL PROPERTY – Torrens title – caveats against dealings – application for removal of caveats – whether plaintiffs would have been granted interlocutory injunctions to protect interests claimed in caveats

PRACTICE AND PROCEDURE – enforcement of court orders for specific performance concerning sale of a business – whether Supreme Court has power to appoint a receiver to enforce final orders pursuant to Supreme Court Act 1970 (NSW), s 67 – appointment of receiver as part of equitable execution – whether discretion to appoint a receiver should be exercised in circumstances where there has been failure to comply with court orders – whether appointing a receiver would be fruitless and would frustrate performance of the court orders

PROCEDURE – adequacy of pleadings – multiple plaintiffs – whether joinder of 17 plaintiffs on the same statement of claim complies with the UPCR – where all parties in agreement that claims should travel together

CORPORATIONS — Winding up — Application for directions under s 511 of the Corporations Act 2001 (Cth) — where proceedings were brought against trustee in its capacity as trustee of a particular trust on the basis of certain transactions purported to be binding on it – where liquidators of trustee sought directions that they be justified in distributing funds of the relevant trust to pay the trustee’s reasonable costs and expenses in the liquidators investigating claims made against the trustee – where proposed investigations would allow liquidators to better assess likelihood of a successful defence of the proceedings and included conducting public examinations and obtaining legal advice on whether proceedings be defended or cross-claim brought – where trust creditor that was joined as defendant to the application opposed application on various grounds – whether the subject of the directions sought involves issue of propriety and reasonableness – whether directions sought ought be made.

NEGLIGENCE – medical negligence – alleged failure to diagnose melanoma on the sole of the foot – deceased consults three doctors about lesion on the sole of the foot - whether lesion was a plantar wart at the time of consultations with the doctors – inadequate note-taking by defendant - whether lesion had appearance of plantar wart - melanoma undoubtedly present at later time – expert evidence concerning relationship between plantar wart and melanoma - whether defendant breached duty in diagnosis and treatment – causation - whether lesion had metastasised at time of consultations – no breach of duty shown EVIDENCE – credibility - reliability – demeanour – human memory – reconstruction of events – dangers of relying on demeanour - importance of contemporaneous objective evidence

CRIMINAL LAW – sentence – murder – aggravated sexual assault – victim abducted and brutally attacked – disposal of deceased’s body and possessions – guilty pleas – young offender – no prior convictions – Autism Spectrum Disorder not causative of offending and does not reduce moral culpability – no remorse – Crimes (Sentencing Procedure) Act 1999 (NSW) s 61 – offence in worst case category – culpability so extreme that maximum penalty appropriate – life imprisonment

CORPORATIONS – winding up – liquidators – settlement deed between liquidators and director – where provisions in deed could be discharged by performance in more than three months after execution of deed – Court’s approval under Corporations Act, s 477(2B) – impact of deed on duration of liquidation – whether reasonable in all circumstances in interests of administration

EVIDENCE – application to exclude evidence on basis of unfair prejudice – Evidence Act 1995, s 137 – where evidence is of a conversation in which the accused explained how to commit the “perfect murder” – whether probative value of the evidence is outweighed by the danger of unfair prejudice to the accused – whether evidence can be edited to minimise the danger of unfair prejudice

PROCEDURE — Costs — where Court had previously determined security for costs application and directed parties to bring agreed orders to give effect to judgment – where parties were in disagreement as to the amount of each of the tranches of security for costs and as to when the first tranche should be provided – whether Court should adopt the plaintiff’s or defendants’ proposed orders.

REAL PROPERTY – mortgages – possession of land – application for summary judgment – request for adjournment – defence disclosing no defence to the claim – defence struck out with leave to re-plead – adjournment granted

PROCEDURE – costs – no good reason for departing from the general rule – orders made PROCEDURE – Judgments and orders – application to reopen judgment as to alleged error – no error established

ADMINISTRATIVE LAW – application for judicial review of decisions of the State Coroner and a Deputy State Coroner – factual issue as to the existence of the decision of the State Coroner of which review is sought – whether State Coroner directed that an inquest be held – whether decision entailed jurisdictional error – whether Deputy State Coroner misapprehended authority to require a person to give evidence CORONIAL LAW – where coronial inquest suspended after plaintiff charged with murder in respect of the death with which the inquest was concerned – power to hold inquest after plaintiff acquitted of murder and manslaughter – whether State Coroner directed a coroner to hold the inquest – whether direction entailed jurisdictional error – whether coroner had jurisdiction to require the plaintiff to give evidence – whether coroner authorised to determine manner and cause of death in circumstance where the only person of interest in the investigation of the death had been acquitted of the murder of the deceased

PRACTICE AND PROCEDURE – where applicant seeks judicial review of costs orders and other decisions made in Local Court and District Court – where application for stay of enforcement of costs orders and of part heard application in Local Court for apprehended personal violence order – no arguable case for interim relief – application refused

CORPORATIONS – winding up – winding up on just and equitable ground – where plaintiff is trustee in bankruptcy holding half of issued shares in company – where defendant holds other half of issued shares – where company’s only function has been as trustee of two trusts – all property held in trust – no property available for distribution to contributories – mere reason that no return available for contributories no ground for refusing winding-up on just and equitable ground – where relationship between shareholders was allegedly unworkable – “just and equitable” concept – mere subjective failure of confidence insufficient – held, just and equitable ground not made good

TORTS – negligence – breach of duty – false tax return lodged – Capital Gains Tax event not declared – penalties imposed by ATO on plaintiff – whether defendant provided erroneous financial advice concerning avoidance of Capital Gains Tax – causation – whether plaintiff relied on erroneous advice or instructed false returned to be lodged

EQUITY – breach of trust – repayment of trust monies

PRACTICE AND PROCEDURE – notice of motion seeking leave to administer further interrogatories –medical negligence proceedings – claim for damages arising out of bodily injury – whether it is in the interests of justice to administer further interrogatories – no need for further interrogatories – plaintiff can achieve forensic purpose by more suitable measures – motion dismissed

LEGAL PRACTITIONERS – costs – solicitor’s lien for costs – subpoena directed to Defendant’s former solicitors for production of file – solicitors’ costs unpaid – whether Defendant was client of solicitors – costs agreement whereby third party payer would meet the costs – no obligation on Defendant to pay those costs – whether lien exists in those circumstances – failure of solicitors to comply with costs disclosure provisions in Uniform Law – whether lien affected

PRODEDURE – contempt, attachment and sequestration – power of Local Court to refer matter of contempt to Supreme Court for determination – Local Court Act 2007 s 24(4) – Supreme Court Rules Pt 55 – where respondent refused to answer questions as prosecution witness in Local Court trial of her brother for domestic violence-related assault – where appearance to Local Court that respondent guilty of contempt – where Local Court referred matter to Supreme Court – appeal from Supreme Court’s dismissal of summons for contempt PROCEDURAL FAIRNESS – contempt – where primary judge found respondent denied procedural fairness by Local Court when exercising referral power – where respondent not informed by magistrate of different courses of action available to Local Court to deal with contempt – where respondent not invited to make submissions on whether magistrate should refer matter or determine summarily – whether implication of common law natural justice principles in s 24(4) – whether observance of procedural fairness attaches as condition of exercise of ‘ministerial’ power – nature of referral power and effect on respondent’s rights and interests – whether increase in extent respondent’s interests jeopardized – where different maximum penalties for contempt punishable in Local Court and Supreme Court – where prejudice in the form of hardship to respondent as Indigenous woman residing in Queensland with children if required to answer contempt charge in Supreme Court

SUCCESSION - FAMILY PROVISION – DISCONTINUANCE OR DISMISSAL - COSTS - The Plaintiff, a person said to be the son of the deceased, applied for a family provision order under s 57(1)(c) of the Succession Act 2006 — Issue as to paternity - Defendant sought parentage testing – Plaintiff consents to participating – Testing reveals that Plaintiff not a child of the deceased – Plaintiff seeks to discontinue the proceedings as he accepts that he is not an eligible person – Defendant seeks dismissal of the proceedings – Issue as to how the burden of costs of the proceedings should be borne, there being no substantive hearing on the merits

JUDGMENTS – ORDERS – application in one proceedings to set aside default judgment in another – treated as made in original proceedings – no arguable defence raised – application dismissed

INJUNCTIONS – ex parte injunction – where defendant had notice of application – injurious falsehood – defamation – mandatory injunction to remove material from website – earlier orders not complied with – further publication in breach of earlier orders CONTEMPT – orders to remove offending material from website not complied with – referral to registrar to consider proceedings for contempt

CRIMINAL LAW – juror discovers witness, CL, known to him as work colleague – at commencement of trial witness’ name not recognised – witness a work colleague – on witness’ entry into Court juror informs Sheriff that he works with witness – juror separated from remaining jurors – Court satisfied that reasonable apprehension of not bringing unbiased or unprejudiced mind to the trial and that juror should be discharged – jury should continue with 11 jurors – witness was the last witness in Crown case and relevant only to third accused (accessory after the fact) – application to separate trial and continue with 12 jurors in relation to two accused charged with murder – application to separate trial, at this stage in the proceedings, refused – trial continued with 11 jurors.

SUCCESSION – intestacy – male deceased has 3 children – deceased divorced from the children’s mother – not known if deceased married again or had other children – whether in the circumstances searches should be undertaken for further children before distribution of the estate to the 3 children pursuant to Succession Act, s 127(1) – whether a Benjamin order should be made.