Cases and authorities

ADMINISTRATIVE LAW – workers compensation – judicial review of decision of Medical Appeal Panel of the Workers Compensation Commission – where Panel directed that worker attend a second assessment with an approved medical specialist prior to making finding of demonstrable error – whether error of law on the face of the record – whether jurisdictional error ADMINISTRATIVE LAW – workers compensation – whether Medical Appeal Panel failed to confine itself to grounds of appeal – construction of s 323 of the Workplace Injury and Management and Workers Compensation Act 1998 (NSW) – whether grounds of appeal include submissions

PROCEDURE — Costs — Security for costs — Application for security for costs – where plaintiff brought proceedings against a company and several of the company’s directors – where company and directors sought security for costs from the plaintiff for both past and future costs of the proceedings – where plaintiff relied on shares it owned in another entity to contend that it could meet orders for costs if unsuccessful in substantive proceedings – where plaintiff contended that separate legal representation by the company and the directors was unnecessary – whether there is reason to believe that the plaintiff will be unable to pay costs of the proceedings if unsuccessful – whether impecuniosity of the plaintiff results from conduct of defendants and whether that matter is relevant given plaintiff did not contend an order for security for costs would stultify proceedings – whether the plaintiff’s claim is essentially defensive in character – whether the Court should accept the quantum of costs sought by the applicants – whether it was necessary for the company and the directors to obtain separate legal representation in circumstances that the plaintiff alleged breach of director’s duties against the directors.

INTEREST – assessment of interest up to judgment – Civil Procedure Act 2005, s 100 – plaintiff successful on claim for loss of profits due to defendant’s repudiation of an agreement to provide caretaker services in a high rise city building – amount of loss of profits ascertained – whether interest on the amount of lost profits should be calculated from the end of the unexpired portion of the repudiated agreement or on the basis that a loss of profits was suffered monthly from the date of repudiation. COSTS – each party has had some success in the proceedings - some failures and some successes in the plaintiff’s claim against the defendant/cross-claimant – the defendant/cross-claimant fails on the cross-claim but succeeds on preliminary issues argued on the cross-claim – what is the proper order for costs in the circumstances – proceedings transferred from Local Court to Supreme Court – whether proceedings could have been conducted in the District Court.

EQUITY – general principles – priority between equitable interests – registered co-proprietor of land made bankrupt – bankrupt mortgages land to lender – mortgage not registered – first registered mortgagee sells pursuant to power of sale – surplus funds – claim by Trustee in bankruptcy and lender for surplus funds – failure of bankrupt to complete Statement of Affairs - – searches by lender showed mortgagor was not listed on National Person Insolvency Index nor any caveat on mortgagor’s land – searches by Trustee did not disclose ownership of any land – subsequent lodgement of caveat by Trustee when land ownership ascertained – thereafter caveat lodge by mortgagee – whether Trustee’s prior interest postponed to that of mortgagee – whether failure of Trustee to lodge caveat promptly after sequestration order was disentitling conduct – no disentitling conduct BANKRUPTCY – administration of property – realisation of property – Bankruptcy Act 1966 (Cth) s 58 – effect of sequestration – severance of joint tenancy between bankrupt and his wife – tenancy in common in equity between Trustee and bankrupt’s wife – bankrupt bare trustee – bankrupt retains no equitable interest in land – charge and mortgage not effectively created REAL PROPERTY – Torrens title – caveats against dealings – whether failure to lodge caveat was sufficient to postpone prior equity

DISCOVERY AND INTERROGATORIES – preliminary discovery – nature of the test – prisoner placed in dry cell – whether held in dry cell in accordance with proper procedures – prior request for documents providing basis for holding prisoner in dry cell – refusal to supply updated manual of procedures – whether prisoner would have any legal redress – prisoner’s right to judicial review and/or damages – residual liberty – whether damages for breach – preliminary discovery ordered

Criminal law – sentencing – multiple armed robberies – mental illness and disadvantaged upbringing – sentence manifestly inadequate

LANDLORD AND TENANT – termination of the tenancy – relief against forfeiture – failure to make monthly rental payment – whether conditions should be imposed on giving relief against forfeiture

PROCEDURE – notice of motion – show cause – no question of principle

PROCEDURE – notice of motion – application to dismiss proceedings – no reasonable cause of action disclosed – no question of principle

CORPORATIONS — Schemes of arrangement — Application under s 411 of the Corporations Act 2001 (Cth) for orders convening a meeting of members to consider and if it thought fit to agree to a proposed scheme of arrangement — where scheme of arrangement involved the plaintiff’s shareholders transferring their shares to another company for cash consideration – where plaintiff proposed to provide notice of the scheme meeting by email to those shareholders who elected to receive notices by email – whether requirements to order scheme meeting are satisfied – whether electronic notification of the scheme meeting should be allowed.

EQUITY – unconscionability – equitable tracing – constructive trust – equitable charge – judicial sale of property – appropriateness of equitable remedies REAL PROPERTY – section 66G of the Conveyancing Act 1919 (NSW) – section 66F of the Conveyancing Act 1919 (NSW) – meaning of incumbrancer – appointment of trustees for a section 66G sale

CRIMINAL LAW – sentence – murder – premeditated – committed in company – committed to conceal another criminal activity – knife attack – use of taser – disposal of body – guilty pleas CRIMINAL LAW – sentence – cultivation of prohibited plants being not less than the large commercial quantity – cannabis – relative roles of co-offenders – guilty pleas CRIMINAL LAW – sentence – accessory after the fact to murder – guilty plea

CRIMINAL LAW – murder – provocation – Little Crazy – no evidence to support the defence – whether defence available based on hearsay statements that target of shooting intended to kill accused – where the plan was botched – wrong man killed – no evidence of provocative conduct of the deceased – no evidence of loss of self-control – well planned but bungled enterprise – no viable defence of provocation

ADMINISTRATIVE LAW – judicial review – application to register children for home schooling – where joint parenting order in place and one parent does not consent to application – whether decision maker required to refuse application on that ground – meaning of “joint parental responsibility” – whether joint parenting order has the effect that parents subject to order are no longer “parents” within meaning of Education Act 1990 (NSW), s 71 for lack of capacity – whether operational inconsistency between Federal order and State legislation

PARTNERSHIP – appointment of receivers – adoption of referees’ report PRACTICE AND PROCEDURE – competency of appeal ‑ whether appeal involves claim, demand or question to or respecting civil right amounting to or to the value of $100,000 ‑ Supreme Court Act 1970 (NSW) s 101(2)(r)

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – where respondent driver injured in motor vehicle accident, sustaining serious brain injury – where proceedings against Nominal Defendant claiming damages, including for economic loss for treatment and care services – where respondent entitled, if eligible, to participate in Lifetime Care and Support Scheme – whether Nominal Defendant may request respondent under s 86 of the Motor Accidents Compensation Act 1999 (NSW) to undergo medical examination for purpose of determining eligibility to participate in Lifetime Care and Support Scheme

CONTRACT – guarantee – electronic signature – where director of company did not change password to system by which his electronic signature could be affixed to documents – where electronic signature affixed to application and guarantee without director’s knowledge or authority – whether director bound by application of principles of ostensible authority – whether director shut eyes to obvious to justify fixing him with knowledge for purposes of ratification

PRACTICE AND PROCEDURE - particulars of claim - Uniform Civil Procedure Rules 2005 (NSW), r 15.1 - adequacy of particulars - detailed particulars of background or context of allegations not required - particulars of high degree of specificity not necessarily required in relation to central allegations - whether requests for particulars were in effect interrogatories

TORTS - negligence - employee of subcontractor injured in the course of performing cartage operations - scope of duty of care of principal contractor to employee of subcontractor - whether non-delegable - nature of relevant risk - whether foreseeable risk of injury caused by posts on truck “not insignificant” - breach not established - whether primary judge erred in finding causation not established COURTS AND JUDGES – duty to make findings – when necessary to make contingent findings on non-decisive points – plaintiff failed at first instance on causation – no findings made on breach or damages – disposition of appeal hampered

CRIMINAL LAW – appeal – assault causing death – whether indictment charging an offence under s 25A of the Crimes Act 1900 (NSW) discloses an offence punishable by law – whether appropriate to determine constitutional question

RESTRAINING ORDERS – no question of principle

HIGH RISK SEX OFFENDER – examination by psychiatrists – no question of principle

EVIDENCE – rule in Browne v Dunn – where evidence not put to defence witness contained in defence documentary evidence – whether witness should be recalled

CORPORATIONS – winding up – liquidators – disclaimer of property under s 568 Corporations Act 2001 (Cth) – effect of disclaimer – escheat to the Crown – whether disclaimed property should vest in registered first mortgagee

REPRESENTATIVE PROCEEDINGS – plaintiff’s application for discovery – no question of principle

CIVIL – construction of a Deed – whether clause within Deed can act as a bar to proceedings – construction of undefined term within Deed – whether Council empowered to waive rates previously assessed

CRIMINAL LAW – conviction appeal – four applicants convicted by jury of murder – whether trial judge erred by failing to give a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573 – Shepherd direction not required CRIMINAL LAW – conviction appeal – function and duty of trial judge in summing up – whether misdirection about hearsay evidence – warning was erroneous and did not correspond to request – adequacy of warnings regarding unreliable evidence under Evidence Act 1995 (NSW), s 165 – whether trial judge erred by inviting jury to consider reason why Crown witness would lie – question diminished effect of warnings about unreliability of evidence – whether summing up unbalanced – applicants denied a fair trial – leave to appeal granted – appeal allowed – convictions quashed – retrial ordered for two applicants CRIMINAL LAW – conviction appeal – unreasonable verdicts – guilty verdicts against two applicants were unreasonable having regard to evidence at trial – verdicts of acquittal entered

CRIMINAL LAW – sentence – appeal – double punishment – applicant convicted of offences under s 51B(1) and s 52A(4) Crimes Act 1900 (NSW) – offences of police pursuit and aggravated dangerous driving occasioning grievous bodily harm – where elements in common between two offences – driver of motor vehicle escaping police pursuit causing danger to other persons – where both offences committed in short time and close proximity – whether primary judge erred in sentencing offender twice for elements in common – whether on the facts offences relate to single act or separate and discrete sets of conduct

EVIDENCE– opinion evidence – agronomist expert report – whether expert has relevant specialised knowledge in respect of effect of cold weather on cucurbits – whether evidence contained in report based on that knowledge

CIVIL – PROCEDURE – strike out application – negligent legal advice alleged – whether claim of the plaintiff is doomed to failure as a result of advocate’s immunity – scope of the application of advocate’s immunity to work performed out of court – scope of the application of advocate’s immunity to consent orders

LIMITATION OF ACTION – leave to commence proceedings – s 151D(2) Workers Compensation Act 1987 – whether leave should be granted – where no prejudice to defendant and where satisfactory explanation for delay COSTS – application for leave to commence proceedings – where application ultimately not opposed – where application necessary whatever defendant’s attitude might be – plaintiff entitled to costs as part of costs if successful in proceedings

ADMINISTRATIVE LAW – judicial review – error of law on the face of the record – jurisdictional error – legal practitioners – decision of Council to commence proceedings in the Tribunal – unsatisfactory professional conduct – professional misconduct – duty to give reasons – whether reasons inadequate

APPEAL – Local Court – insurance claim – lay evidence of collision at odds with experts’ evidence – without intent – no point of principle

CRIMINAL LAW – sentence – murder – death of offender’s former partner caused by blunt force trauma inflicted while asleep in bed – where offender and deceased separated at time of death – where offence pre-meditated and planned – where no remorse or contrition expressed – where offence above mid-range of objective seriousness

PRACTICE AND PROCEDURE – application for stay of orders pending determination of appeal – disciplinary findings of professional made against appellant arising out of discourteous letter to a judicial officer – appellant required to undertake and pass legal ethics class within six months of orders – appellant appealing findings of professional misconduct on multiple grounds – whether appeal would be rendered nugatory if a stay were not granted – whether arguable grounds for appeal demonstrated – whether any concern of prejudice to the public by reason of appellant continuing to practise pending his undertaking an ethics course PRACTICE AND PROCEDURE – application for stay of proceedings in Court of Appeal pending the outcome of High Court’s determination of application for removal of matter to that court – appellant applied for order under s 40 of Judiciary Act 1903 (Cth) removing the whole of the case now pending in Court of Appeal – appellant contending that relevant provisions of Legal Profession Act 2004 (NSW) breach the implied freedom of political communication – whether there is arguable case for removal of matter to High Court – whether very substantial delay in making application to High Court should affect interference with hearing of the appeal – whether costs should allowed to be thrown away that were incurred in preparation of the appeal

APPEAL – application for leave to appeal from orders making provision out of deceased estate – amount in issue small in relation to value of estate and costs likely to be incurred should appeal be allowed – no error of principle demonstrated in primary judge’s decision

CRIMINAL LAW – Judge-alone murder trial - unavailable police witness - Crown tenders statement and Investigator’s Note of unavailable police officer - whether requirements of s.65(2) Evidence Act 1995 are met - held requirement of s.65(2) are satisfied - evidence admitted

REAL PROPERTY – possession of land – commercial lease of premises – default in payment of rent – tenant company deregistered – sole director and shareholder in occupation of premises – appeal against refusal of legal aid – adjournment sought - appeal not being pursued in good faith – defendant signs consent orders in Local Court acknowledging Plaintiffs’ right to possession – adjournment refused – order for possession made

EQUITY – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Whether trustees entitled to recover costs of proceedings on indemnity basis – Whether trustees entitled to recover costs from trust assets – Whether trustees should first seek to recover costs from unsuccessful plaintiff – Whether trustees should then have recourse to unsuccessful plaintiff’s notional share of trust assets PROCEDURE – Costs – Third defendant applied for joinder to proceedings – No relief sought against third defendant – Limited participation in proceedings by third defendant – Whether unsuccessful plaintiff should pay third defendant’s costs PROCEDURE – Costs – Whether unsuccessful plaintiff should indemnify other beneficiary for costs paid out of other beneficiary’s notional share of trust assets

PROCEEDS OF CRIME – restraining order – ex parte application – orders made in terms of short minutes of order

REAL PROPERTY – caveats – caveat lodged by purchaser under contract for sale – contract terminated by vendor due to purchaser’s failure to make payments of deposit – purchaser claims relief against forfeiture and specific performance – whether serious question or prima facie case shown – order for extension of operation of caveat refused REAL PROPERTY – caveats – caveat lodged by vendor – vendor’s lien claimed over two lots in respect of unpaid deposit payable for other lots – lien claimed over lots for which purchase price paid in full – whether serious question or prima facie case shown – order made for withdrawal of caveat

PROCEDURE – Transfer of proceedings from District Court of New South Wales to Supreme Court of New South Wales – Matter listed for hearing in District Court – Substantial delay in application for transfer of proceedings – Any jurisdictional difficulties attributable to party seeking transfer – Whether risk of prejudice or injustice to parties arising from amounts claimed in District Court – Desirability of final hearing of proceedings as soon as possible – Whether appropriate for proceedings to be transferred to Supreme Court

SUCCESSION – family provision – applications for approval of releases under Succession Act 2006, s 95 - no matrimonial property settlement for deceased’s former wife – advances made during her lifetime to the deceased’s wife at the time of his death – whether releases given by each of the former wife and the wife at the time of death should be approved. TRUSTS – application for judicial advice under Trustee Act 1925, s 63 – settlement of family provision proceedings requires vesting of trust – whether trustee would be justified in exercising power to vest the trust and distribute the trust assets in accordance with the settlement - the deceased’s memorandum of wishes expresses intention that trust assets should be distributed to particular beneficiaries and in a manner consistent with the settlement ultimately reached between the parties – whether the memorandum of wishes can be taken into account.

PRODEDURE – Judgments and orders - amending, varying and setting aside – applicant seeking leave to appeal from orders under s 8(7) Vexatious Proceedings Act 2008 (NSW) – application to vacate concurrent hearing – where no explanation for failure by applicant to comply with previous deadlines to file and serve draft notice of appeal and submissions – application for summary determination of appeal – power of single Judge of Appeal under s 46 Supreme Court Act 1970 (NSW) – application for disqualification of Court of Appeal Registrar for actual and apprehended bias – whether prejudice or hatred towards the applicant – whether prejudgment or mind not open to persuasion – whether fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial and unprejudiced mind to resolution of questions to be determined – whether shown that Registrar might not decide matters of case management other than on legal and factual merits consistent with s 56 Civil Procedure Act 2005 (NSW)

APPEAL – application for leave – where orders made against applicant under Vexatious Proceedings Act 2008 (NSW) – where applicant seeks to appeal from those orders – where leave required by s 101(2)(r) of the Supreme Court Act 1970 (NSW) as no money or property in issue – where more than two year extension of time required for making of application for leave – where no material error identified or apparent in first instance judgment – where appeal sought to be pursued for misconceived and improper purpose of challenging validity of sequestration order made in earlier bankruptcy proceedings – where applicant previously sought leave to commence proceedings on the premise that existing orders correct – application dismissed

CRIMINAL LAW – appeal against sentence – aggregate sentence – offences against Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 25(1) – possession of prohibited weapon – rejection of evidence of offender by sentencing judge – whether adequate reasons CRIMINAL LAW – appeal against sentence – whether manifest excess – comparable sentences

DEFAMATION – pleadings – application for leave to amend statement of claim – litigant in person – where proposed amendment sought to incorporate lengthy affidavit with no attempt to distil causes of action

DEFAMATION – defences – defence of contextual truth – application to have contextual imputations struck out as being incapable of being conveyed – care to be exercised before striking out imputations – application to have particulars of truth struck out as being incapable of proving truth of imputations – consideration of proper approach – whether court has authority to strike out relevant particulars on the grounds of proportionality

CONTEMPT – defendant failure to attend hearing – alleged alteration of terms of court order

REPRESENTATIVE ACTION – class closure – dismissal of claim by non-registered group members – order that dismissal operates as final determination of claims