Cases and authorities

PRACTICE & PROCEDURE – interim payment – where likely the plaintiff would obtain judgment for substantial damages if case went to trial – separate hearing of liability and damages issues – where plaintiff’s medical condition has not stabilised due to her young age – damages claim incapable of accurate assessment – whether court authorised to pay portion of interim payment to plaintiff’s tutor pursuant to section 77(3) of the Civil Procedure Act 2005 – where no suggestion that money would be retained for benefit of plaintiff – whether tutor entitled to be recompensed for gratuitous care and services rendered to plaintiff – where no evidence of care and services provided

PROCEDURE – civil – Notice of Motion seeking variation of discovery orders – where discovery orders made by consent – whether discovery orders are oppressive – whether it is in the interests of justice to vary the discovery orders

STATUTORY INTERPRETATION – where applicant made privacy complaint seeking internal review of Minister’s alleged conduct in obtaining and using applicant’s personal and health information – Privacy and Personal Information Protection Act 1998 (NSW), s 53 – Health Records and Information Privacy Act 2002 (NSW), s 21 – whether definition of “public sector agency” in each Act extended to a Minister – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4 STATUTORY INTERPRETATION – whether later amendments to principal Act relevant to statutory interpretation STATUTORY INTERPRETATION – interpretation of legislation in pari materia WORDS & PHRASES – “person or body” – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4

CRIMINAL LAW – procedure – bail – applicant charged with robbery in company while armed with a dangerous weapon – applicant charged with aggravated robbery causing grievous bodily harm – applicant charged with dishonestly obtaining a financial advantage – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – assessment of bail concerns – failure to appear – commit further serious offences – endanger the safety of victims, individuals or the community – no prior criminal record – strong family ties to community – youth – delay before trial – identification of applicant – strength of Crown case – whether bail conditions met bail concerns – unacceptable risks – application dismissed.

CORPORATIONS – winding up – liquidators – liquidators’ remuneration – where new liquidators inherited assets recovered by former liquidators at substantial expense – where new liquidators sought legal advice as to whether they were able to strike special levy – where liquidators’ work has detracted from value for creditors but still potential for generation of additional value – moderation of liquidators’ rates and remuneration

PRELIMINARY DISCOVERY – defendant operator of website hosting forum for comments about ASX-listed companies – where comments defamatory of plaintiff posted anonymously – plaintiff seeking to ascertain identity of holder of relevant account

DEFAMATION – application to dismiss proceedings - non-compliance with directions of court – discovery PROCEDURE – interlocutory steps – whether due dispatch

DEFAMATION – imputations – whether capable of arising from matter complained of – no question of principle

PROCEDURE – where statement of claim lodged for filing within limitation period but rejected by registry for failure to comply with the rules – country solicitor lodging documents by post – rejection of filing not coming to solicitor’s attention until after the expiry of the limitation period – papers secured with a Tudor owl paper clip rather than a staple – whether “securely fastened” – irregularity on the part of the solicitor or the registry – whether s 63 of the Civil Procedure Act confers authority to address an irregularity in the commencement of proceedings

JUDICIAL ADVICE – TRUSTEE ACT, s 63 – letter received by the administrator of a deceased estate making money claims against the estate – the author of the letter, a son of the deceased, becomes bankrupt – son’s trustee in bankruptcy gives releases but the bankrupt son’s potential claims against the estate, under the Family Provision Act 1982 and the Succession Act 2006 are not the subject of the releases – administrator proposes to distribute the estate – whether the administrator would be justified in treating the letter as not being notice of a claim for provision out of the deceased’s estate pursuant to Family Provision Act 1982 or Succession Act 2006.

PRACTICE AND PROCEDURE – apprehension of bias – whether judge should recuse himself from hearing the balance of the proceedings – where judgment on separate question expresses opinion that expert had made no manifest error in relation to interpretation of “landlord’s works” – where plaintiff intends to argue expert determination contained other manifest errors

DEFAMATION – defences – qualified privilege at common law and pursuant to the Defamation Act 2005 (NSW) – where government-employed paediatric specialist wrote to department of education officer raising concerns as to the department’s unqualified support for a business offering hearing tests in public schools for a fee – whether an occasion of qualified privilege – whether statements relevant to the occasion – whether conduct of author in publishing the matter complained of reasonable in the circumstances CONSUMER LAW – email sent by government-employed paediatric specialist to department of education officer in relation to hearing tests offered in public schools by the plaintiffs – whether conduct in trade or commerce – consideration of extended definition of “trade or commerce” in the Australian Consumer Law

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether adjudicator failed to perform statutory function – whether adjudicator failed to determine for himself the construction work that had been carried out and its value – where declaratory and injunctive relief sought – whether adjudication should be remitted to adjudicator COSTS – building and construction – adjudication determination – where unsuccessful party was ready to proceed with final hearing at interlocutory stage – whether costs should be awarded against unsuccessful party on that basis

CRIMINAL LAW – contempt of court – failure to answer questions – conduct of contempt proceedings.

CRIMINAL LAW – Sentence – Murder – Supplying prohibited drug in an amount not less than the large commercial quantity – Verdicts of guilty by a jury following trial – Where offenders were former police officers – Where Crown case was based on a joint criminal enterprise to kill the deceased and steal a quantity of drugs from him – Extensive planning by the offenders leading up to the death of the deceased – Where such planning included the acquisition of a motor vehicle which was not traceable and the availability of a boat which could be used to dispose of the deceased’s body at sea – No factors to distinguish the roles played by each offender – No factors mitigating the offending CRIMINAL LAW – Sentence – Murder – Whether offending was in the worst possible category justifying the imposition of a life sentence – Consideration of relevant indicia – Life sentence imposed CRIMNAL LAW – Sentence – Murder – Mitigating factors – Where one offender relied upon a defence of duress at trial – Where jury convicted the offender of murder and in doing so rejected the defence of duress – Where basis of that rejection not known – Whether open to the offender to seek to rely upon duress as a mitigating factor the purposes of sentence

CONTEMPT – refusal to give evidence when called as a witness in a criminal trial – where defendant held fears for her safety and the safety of her family – where defendant purged her contempt and explained her conduct – where strong subjective case indicated no prospect of re-offending – where imposition of a custodial sentence would be a crushing punishment in the circumstances

LOCAL GOVERNMENT – amalgamation of councils – Minister proposes amalgamation of two councils – proposal referred to a delegate of the Chief Executive for examination and report pursuant to s 218F(1) of the Local Government Act 1993 (NSW)(LG Act) – the delegate’s report forwarded to the Local Government Boundaries Commission (Commission) for review and comment pursuant to s 218F(6) of the LG Act – Commission’s review forwarded to the Minister – whether the delegate was obliged to alert one of the affected councils in advance that he proposed to give little weight to a “Community Poll” conducted by the council – whether the Commission misconstrued its functions under the LG Act by failing to consider independently the merits of the Minister’s proposal as distinct from renewing the delegate’s report – whether the Minister denied the affected council procedural fairness by allowing a limited time for further submissions before the Minister made a recommendation to the Governor.

BANKING – contract – agreement between bank and customer to open new account – whether a clause in the bank’s printed terms and conditions limiting the bank’s liability in certain circumstances was incorporated into the contract – whether contract was cancelled before customer received printed terms and conditions – whether bank took steps reasonably necessary to bring customer’s attention to the limiting clause. PROCEDURAL FAIRNESS – whether any denial of procedural fairness to bank in customer being permitted to dispute that she had signed a withdrawal slip. AGENCY – whether customer had authorised a third party to withdraw funds from her account – ratification – whether customer ratified the third party’s withdrawal of funds. EVIDENCE – whether primary Judge relied on Jones v Dunkel inference against bank – whether such reliance is justified.

PRACTICE AND PROCEDURE – application to stay orders of the District Court – no basis for a stay.

REAL PROPERTY – caveats – application by registered proprietor for an order that a caveat claiming a security interest in the land be withdrawn to enable the registered proprietor to refinance a first mortgage – registered proprietor disputes the validity of claimed security interest protected by the caveat – order made for withdrawal but allowing relodgement of caveat after refinancing – effect of order is to reduce registered proprietor’s equity in the land – whether primary Judge erred in ordering withdrawal – whether discretion conferred by s 74MA of the Real Property Act 1900 (NSW) constrained by requirement that the case be “unusual” or “rare” before an order for withdrawal of a caveat can be made.

INDUSTRIAL LAW – New South Wales – statutory provisions relating to public sector employees - Workers Compensation Act 1987 Sch 6 – Workers Compensation Legislation Amendment Act 2012 (NSW) Sch 12 Pt 19H cl 25 – changes to workers compensation scheme – exemption of police officers, paramedics and firefighters INDUSTRIAL LAW – New South Wales – awards and agreements – appeal from Industrial Court – where primary judge made declaration that respondent was a ‘paramedic’ under Workers Compensation Act 1987 at time of workplace injury – where respondent employed by Ambulance Service of NSW as paramedic under Operational Ambulance Officers (State) Award – suffered injury on secondment to different position of Health Advisor – where contract of employment for substantive paramedic position subsisted during period of secondment – classification as ‘paramedic’ under subsisting contract – where respondent’s letter of application requested maintaining an operational paramedic role while on secondment – where evidence of Ambulance Services’ intention to facilitate respondent undertaking occasional paramedic work while on secondment – whether respondent’s appointment to position of Health Advisor altered ‘paramedic’ status – different nature of duties INTERPRETATION – general rules of construction of instruments – exemption from detrimental changes to workers compensation legislation – application of exemption to nominated classes of worker – where all nominated occupations in emergency services – whether focus of exemption on worker’s status or function – whether qualification that worker is required to perform duties of the nominated classes at time of receipt of injury – remedial character of workers compensation legislation – whether beneficial construction

CRIMINAL LAW – appeal – sentencing – whether findings as to risks associated with assault available on the evidence – whether manifestly excessive

CRIMINAL LAW – sentence appeal – serious drug offence – matter referred to Court of Criminal Appeal to be dealt with as an appeal – alleged Muldrock and Kentwell errors in previous appeal decision – proper approach to re-sentencing – appellant had already been released on parole – rehabilitation demonstrated

CRIMINAL ‑ Crown appeal against sentence –whether sentence manifestly inadequate – grievous bodily harm with intent ‑ where sentencing judge imposed a suspended sentence for all four offenders ‑ whether sentencing judge erred in assessing the offences at the low end of the range of objective seriousness – exercise of residual discretion ‑ appeal dismissed

CRIMINAL LAW – supply drugs – multiple charges - large commercial quantities – commercial quantities – knowingly participate in criminal group – appeal against conviction – improperly obtained evidence of finding and seizing drugs – whether evidence should have been excluded – whether entry onto property and inspection of bag without search warrant was a deliberate circumvention of Law Enforcement (Powers and Responsibilities) Act 2002 – whether officers of Australian Crime Commission had reasonable grounds to inspect bag – whether misrepresentation to magistrate for search warrant CRIMINAL LAW – disclosure of evidence by Crown – whether disclosure of covert listening device – whether miscarriage of justice EVIDENCE – fresh evidence – expert evidence obtained subsequent to trial – evidence not obtained prior to trial for financial reasons – lack of satisfactory explanation of financial issues – evidence available prior to trial - whether fresh evidence as a result of impecuniosity – whether further evidence would be likely to have caused jury to have a reasonable doubt about guilt of the accused – no reasonable doubt shown on the whole of the evidence

CRIMINAL LAW – Crown appeal against sentence – two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm – whether sentence manifestly inadequate – offender driving at excessive speed on rough road with passengers unrestrained – offending objectively serious and involving significant moral culpability – offender suffering serious psychiatric consequences as a result of accident – fragile mental health – sentence manifestly inadequate but residual discretion exercised – Crown appeal dismissed.

CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand – whether certificate of taxation calculated in accordance with order for costs – valid certificate binds parties – no pending application to set aside or review certificate – held, no reason to set aside demand on that ground – whether there was a judgment debt due and payable – whether purported certificate of taxation attached to demand is in fact a certificate of taxation at all – notice of filing recorded only that draft Certificate was lodged but does not record its issue by the Court – held, no certificate issued

CORPORATIONS — Winding up — Winding up in insolvency – Adjournment of winding up application — where administrators of company sought adjournment of winding up application to allow further assessment of affairs of company and allow a proposed deed of company arrangement to be considered at second creditors’ meeting – where winding up application had previously been adjourned for short period – whether the terms of the proposed deed of company arrangement are such that it is in the interests of the company’s creditors that the company continue under administration rather than be wound up. CORPORATIONS — Winding up — Presumption of insolvency — where company failed to comply with creditor’s statutory demand — where applicant for the winding up of the company was previously substituted as applicant in the winding up proceedings under s 465B of the Corporations Act 2001 (Cth) – whether the company be wound up under s 459P of the Corporations Act 2001 (Cth).

CRIMINAL LAW – Judge-alone trial for murder - Crown application under s.42 Evidence Act 1995 to restrict use of leading questions in cross-examination of Crown witness on a particular topic - two-phase approach to cross-examination permitted - use of non-leading questions in first instance - leading questions permitted thereafter

CRIMINAL LAW – sentencing – conviction after jury trial of seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) of assisting persons with the intention that they enter Syria for the purposes of engaging in armed hostilities – principles of general deterrence and need to denounce the offending CRIMINAL LAW – sentencing – Commonwealth offence – seven offences – no statutory ratio or judicially determined norm for proportion between non-parole and total term – single non-parole period imposed

PROCEDURE – costs – no matter or principle

CRIMINAL LAW – search warrants – execution –statutory construction – whether the obligation under s 69 of Law Enforcement (Powers and Responsibilities) Act 2002 to produce a warrant referred to in s 69, namely, “must produce”, the warrant for inspection by the occupier of premises if requested to do so by that occupier admits an exception formulated either in terms “as soon as reasonably practicable” or whether any such exception arises only in “exigent circumstances”

CONTEMPT OF COURT – construction of undertaking – defendant gave an undertaking to court of non-solicitation of clients – plaintiff alleges that the defendant breached his undertaking by communicating with the plaintiff’s clients – whether the word “client” in the undertaking was intended to have its ordinary meaning or the meaning as defined in the employment agreement – consideration of undertaking as a whole – held the term was intended to have its ordinary meaning – held Mr Duncan was not a client of the plaintiff but Mr Farnsworth was – whether the defendant’s communication with Mr Farnsworth involved solicitation – held email communications with Mr Farnsworth constituted a solicitation – whether the defendant had direct dealings with Mr Farnsworth – held the defendant did not have direct dealings with Mr Farnsworth whilst working for the plaintiff – held plaintiff failed to establish beyond reasonable doubt that the undertaking was breached – held plaintiff’s amended summons and amended statement of charge be dismissed

REAL PROPERTY – Torrens title – Unilateral severance of joint tenancy under s 97 Real Property Act 1900 – Claim of agreement not to sever POWER OF ATTORNEY - Whether unilateral severance validly occurred - Deceased executed Power of Attorney in favour of second Defendant as substitute attorney - Whether specified attorney was “unwilling or unable to act” – Whether the second Defendant had power to execute a Statutory Declaration in support of registration of a Transfer by the deceased, unilaterally severing joint tenancy. REAL PROPERTY - Indefeasibility - Whether s 42 Real Property Act 1900 operated so as create indefeasible title - Claim of statutory fraud. SUCCESSION - In the alterative, if no valid severance, Cross-Claim by the first Defendant for a family provision order under Chapter 3 of the Succession Act 2006 out of the estate of the deceased – First Defendant was the wife of the deceased – If no valid severance, no actual estate, but potential notional estate of half the property which the deceased owned as a joint tenant –Unnecessary to decide.

APPLICATION FOR LEAVE TO APPEAL – extension of time – applicant unsuccessful as plaintiff in District Court seeking to recover bonuses from former employer – applicant then sued his barrister and solicitor seeking orders that they pay the costs ordered against him – those proceedings dismissed – leave to appeal from those proceedings refused – where premise of those proceedings was correctness of original District Court decision – applicant seeks extension of time, two years later, to appeal against original decision – where success on appeal would give rise to inconsistent judgments – whether sufficiently arguable proposed grounds of appeal demonstrated – leave to appeal refused

APPLICATION FOR LEAVE TO APPEAL – primary judge determined some but not all issues ordered for separate determination – application for leave to appeal – where parties will enjoy appeal as of right when all issues determined at first instance – whether undetermined issue should be determined by the Court of Appeal – whether sufficiently strong case of error made out – leave refused

APPEAL – application for leave to appeal against interlocutory orders made in four judgments of Supreme Court – asserted error in orders made preventing applicant from filing any further pleading without leave from judge and affidavit evidence – leave to appeal granted against those orders only – asserted error in refusing to enter default judgment against respondents – asserted error in refusing to award interim damages –– no issue of principle raised by any other proposed grounds appeal – application for leave to appeal otherwise dismissed PRACTICE AND PROCEDURE – Notice of Motion – application to set aside order made by single judge of Court of Appeal – application to re-instate earlier Notice of Motion seeking expedition of appeal – no error disclosed – Notice of Motion dismissed

SUPERANNUATION – police superannuation allowances under the Police Regulation (Superannuation) Act 1906 (NSW) – superannuation allowances where member of police hurt on duty – requirement that member have “resigned or retired” under s 10B – whether “resigned or retired” and “resignation or retirement” encompass unfair dismissal APPEAL – application for leave to appeal – Industrial Relations Act 1996 (NSW), s 403B – Court to grant leave if, in its opinion, matter is of such importance that, in the public interest, leave should be granted – relevant principles where duty not engaged WORDS AND PHRASES – “resigned or retired” – “resignation or retirement” – whether such words, as used in the Police Regulation (Superannuation) Act 1906 (NSW), s 10B, encompass unfair dismissal

APPEAL – appeal from District Court’s residual jurisdiction – whether error in point of law – District Court Act 1973, s 142N – proceedings under Police Regulation (Superannuation) Act 1906, s 21 seeking to set aside decision of STC WORKERS' COMPENSATION – entitlement to compensation - grant of gratuity under s 12D(1) – whether surgical treatment of neck reasonably necessary under Workers Compensation Act 1987, s 60 – whether primary judge found that as a result of certified “hurt on duty” injury proposed surgery reasonably necessary SUPERANNUATION –former police officer – grant of gratuity sought for surgical treatment –decision by STC that proposed surgery not reasonably necessary – finding by primary judge that other causes of officer’s neck pain be excluded before proposed surgery reasonably necessary – whether exercise of incidental power under Superannuation Administration Act 1996, s 57

CRIMINAL LAW – murder trial - witness asked for recollection of conversation - witness recalls some of conversation - whether witness may be asked whether what he said in conversation was the truth - objection to question - question allowed

ADMINISTRATIVE LAW – appeal and judicial review – inadequate opportunity to prepare and present case – non-opposition at first instance to adjourn hearing – magistrate erred in not vacating hearing dates.

CRIMINAL LAW – murder trial - application by Crown to cross-examine witness under s.38 Evidence Act 1995 - application granted

ADMINISTRATIVE LAW – judicial review of decision to refer application to panel of medical assessors – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – inconsistencies in clinical findings and observations – Permanent Impairment Guidelines 2007 (NSW), cl 1.43 – whether error of law on the face of the record arising from failure to consider whether medical assessment would have differed had inconsistencies been brought to claimant’s attention – whether proper officer erred by considering non-compliance with cl 1.43 as cause for reasonable suspicion that medical assessment was incorrect in a material respect – whether precondition in s 63(3) is a jurisdictional fact – whether proper officer’s decision was unreasonable STATUTORY INTERPRETATION – construction of Permanent Impairment Guidelines (NSW), cl 1.43 – purpose of assessor’s duty to bring inconsistencies to claimant’s attention – whether procedural fairness afforded by cl 1.43 limited to claimant’s benefit

PRACTICE AND PROCEDURE – completion of application for leave to join an additional defendant and to amend plaintiffs’ statement of claim – application granted – no issue of principle

COSTS – discontinuance of proceedings – application for alternative costs order made by plaintiffs under UCPR r 42.19(2) – first plaintiff further seeks indemnity costs following Calderbank offer – consideration of circumstances of discontinuance – held first plaintiff achieved substantial success – held unreasonable conduct by defendant – held entitlement to an alternative costs order made out – whether Calderbank offer was valid – held there was no genuine offer of compromise – held Calderbank offer was not a valid basis for ordering indemnity costs as the court has not decided the issues in dispute – held entitlement to indemnity costs not made out – held parties to bear their own costs of the proceedings other than in respect of the first plaintiff’s interlocutory notice of motion – first plaintiff should bear the costs of the interlocutory notice of motion as the court declined to grant interlocutory relief and ordered that the costs of the notice of motion be the defendant’s costs in the cause

APPEAL – decision of Associate Judge – client legal privilege – State said to be liable for alleged misfeasance in public office of police officers – officers investigated and charged plaintiff’s partner – partner committed suicide – subpoena to Director of Public Prosecutions – privilege claim by DPP – whether communication between DPP solicitor and police officer was confidential – whether privilege waived by provision of documents by DPP to Crown Solicitor – whether error in finding DPP retained Crown Solicitor – whether common interest between DPP and state – whether conduct of DPP inconsistent with maintenance of privilege

CONVEYANCING – sales by court order or direction – appointment of trustees for sale – contractual limitations upon seeking appointment of trustees – discretion to withhold relief – contractual pre-conditions in the course of being satisfied – appropriate to adjourn proceedings for a period

SUCCESSION – Making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Delusions and lack of understanding of will

COSTS AND CONSEQUENTIAL RULINGS – proceedings for specific performance of a February 2011 agreement to settle proceedings – Court holds two hearings and gives judgments respectively in October 2013 and May 2016 – which party should bear the costs of the proceedings – whether interest up to judgment is payable to one or other party under Civil Procedure Act 2005, s 100 – whether or not the parties should bear equally the subdivision costs expended on the driveway on Lot 1 of the land in question or whether some allowance should be made for the capital benefit derived to the owner of Lot 1 (the first defendant/cross-claimant) consequent upon that expenditure.