Cases and authorities

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – “blameless accident” – where respondent driver of motorcycle injured in collision with kangaroo – where respondent not owner of motorcycle – where injury not caused by any use or operation of owner – where motor accident “blameless” because not caused by fault of owner or driver or any other person - whether respondent entitled to recover damages from owner – whether s 7B deems injury to have been caused by fault of owner in “use or operation” of vehicle where motor accident causing injury does not involve any use or operation by owner.

COSTS – costs of appeal follow the event – costs of proceedings in court below where appellants unsuccessful at first instance against second defendant and did not appeal that part of decision –appellants liable for costs of second defendant to extent they were incurred separately from first defendant – no basis for Bullock order in favour of the appellants

CRIMINAL LAW – sentence appeal – charged with possession of a loaded firearm in a public place – charged with aggravated possession of an unregistered firearm in a public place without authority to possess the firearm – charged with maliciously damage property by fire – charged with deemed supply of a large commercial quantity of a prohibited drug – whether the sentence miscarried by reason of the failure of the applicant’s counsel and solicitors to adequately prepare for and present his case on sentence

CRIMINAL LAW – SELF DEFENCE – availability of defence – gangland violence – Brothers for Life - where accused believe contract taken out by target of shooting – whether self-defence arises – whether criminal enterprise encompassed killing people who posed no threat – whether defence should be left to the jury – question of fact – requirement to put defence to the jury unless untenable CRIMINAL LAW – DURESS – availability of defence – whether duress should be left to the jury – where accused voluntarily joined criminal gang – whether defence available to members of criminal gang – whether defence available where accused knew he may be subject to unlawful compulsion – uncertainty in authorities

DEFAMATION – defences – application to have defence of contextual truth struck out – whether contextual imputations capable of being conveyed – same caution to be exercised as when ruling on capacity in respect of a plaintiff’s imputation

PRACTICE AND PROCEDURE – judgments and orders - stay of judgment conditional upon the filing of an appeal within 28 days and pursuing the appeal with due diligence - where risk that plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed

DAMAGES – calculation of future superannuation loss by way of a buffer as a component in the award by way of a buffer for future economic loss – no specific head of claim particularised in relation to claim for physiotherapy and accordingly no allowance made in that regard

CONTRACT – appeal from Local Court decision – guarantee arising from a credit application – defendant/director of the company an experienced and sophisticated businessman – defendant separately signed as director of the company on the credit/supply contract and as guarantor GUARANTEE – test to be applied in determining whether a binding contract of guarantee – defendant’s wife filled out the contract – defendant did not read the document before signing – nature of the guarantee not specifically drawn to defendant’s attention by plaintiff’s sales engineer – no evidence of objective circumstances to support the contention that the defendant did not intend to enter into a contract of guarantee – no duty on behalf of the sales engineer to alert the defendant as to the guarantee and to the fact that the defendant should obtain legal advice – the signature of the defendant objectively manifested the fact that the defendant understood and intended to be bound by the terms and conditions of the guarantee – silence of the sales engineer did not amount to misleading and/or deceptive conduct

CORPORATIONS – voluntary administration – where the board of a public company consisting of two directors only resolves to appoint administrators – whether in fact both directors participated in the passing of the resolution – whether both directors held a genuine opinion in good faith that the company was insolvent or likely to become so – whether the directors acted for an improper purpose of defeating the wishes of the shareholders who were about to vote to reconstitute the board – whether the resolution of the board of a company having fewer than the statutory minimum of directors was an effective resolution – whether the administrator discharged his responsibility to assess the validity of his appointment – the nature and scope of that responsibility discussed – whether the administrator should have commenced proceedings to test the validity of his appointment.

PRACTICE AND PROCEDURE – costs – security for costs in representative proceedings – security refused

CRIMINAL LAW – murder trial - Crown application to cross-examine Crown witness under s.38 Evidence Act 1995 - evidence unfavourable to Crown - prior inconsistent statements - credibility - leave granted

CONTEMPT – practice and procedure – evasion of service by alleged contemnor – power to order attendance at hearing

CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for sexual intercourse without consent – no doubt or question as to the applicant’s guilt

PROCEEDS OF CRIME – practice and procedure – application to re-open and set aside a stay previously granted in the proceedings – date for criminal trial vacated and likely to be some delay in re-listing – stay due to expire – non-disclosure of fact material to original decision to grant stay – stay set aside

COSTS – decision reserved pending High Court decision in Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 – orders consented to by parties – material filed will be relied on in final hearing – costs reserved

COSTS – where main proceedings dismissed for want of due despatch – where cross-claim dismissed – where in previous applications plaintiffs’ claims described as “defensive” – applications for costs orders – defendants’ application for gross sum costs order – whether a gross sum costs award should be made.

CORPORATIONS – dissolution – striking off of defunct company – reinstatement – where company struck off under Companies Act 1961 – where application previously dismissed on basis that jurisdiction under 1961 Act no longer available following its repeal in 2008 – application to set aside dismissal on ground that right to make application under 1961 Act was accrued right – held, right to apply for favourable exercise of discretion is not an accrued right STATUTES – acts of parliament – repeal – preservation of accrued rights – right to apply under Companies Act 1961 for declaration that dissolution of company void – whether accrued right – held, right to apply for favourable exercise of discretion is not an accrued right

PRACTICE AND PROCEDURE – stay of costs order pending appeal – expedition – reasonable prospects of success – issue of general importance - possibility that enforcement of costs order would stultify appeal PRACTICE AND PROCEDURE – security for costs – respondent to show order against corporation would not stultify appeal – whether those standing behind company have means to provide security – application for adjournment – respondent seeking subpoenas to test statements as to lack of means of shareholders and directors

PRACTICE AND PROCEDURE – whether leave should be given to challenge earlier Court of Appeal decision – party wishing to challenge the decision not reserving her position at trial – whether earlier decision should be reopened. PERSONAL INJURIES – blameless accident – contributory negligence of plaintiff no bar to recovery under Part 1.2 Div 1 of Motor Accidents Act 1999 (NSW) – extent of reduction in damages by reason of contributory negligence – test to apply.

ADMINISTRATIVE LAW – s 69 application for judicial review of 2005 Local Court convictions – extension of time for review refused at first instance on basis of delay and loss of documents – application for leave to appeal to the Court of Appeal refused

CRIMINAL LAW – sentence appeal – aggravated break, enter and steal – whether error in not granting adjournment – whether error in assessment of objective seriousness – whether error in finding Form 1 offence added to the criminality of the principal offence – whether prior record made principal offence worse – whether error in referring to retribution – applicant aged 20 years at time of offence – whether applicant’s youth properly taken into account – re-sentence – whether lesser sentence should be passed – whether leave to appeal should be refused or granted – whether it is necessary to indicate the sentence which would have been imposed if held that no lesser sentence warranted in law

PROCEDURE – interlocutory injunction – restraint of trade – whether restraint against defendant should be extended in time – where parties have agreed to mediation –whether injunction should be extended in scope – no question of principle

PRACTICE AND PROCEDURE — Costs — Rule 42.1 Uniform Civil Procedure Rules 2005 — General rule — Costs follow the event — Plaintiff recovered judgment for a substantial sum — Plaintiff successful on only one of three substantive claims — Whether plaintiff entitled to an order that the defendant pay all of his costs — Defendant’s success on dominant issue justifies discounting plaintiff’s entitlement to costs — Defendant to pay 60 per cent of plaintiff’s costs

CRIMINAL LAW – sentence – murder – victim estranged wife of offender – history of physical violence and threats to kill – offender repeatedly stabbed victim with intention to kill because she violated the “rule of marriage” – above mid-range objective seriousness but not in the worst case category – non-psychotic motivations of revenge and feelings of being dishonoured more causative than psychiatric conditions – no genuine remorse – significant drug problem – prior good character and reasonable prospects of rehabilitation – general deterrence and denunciation of particular importance

CRIMINAL LAW – application for interim relief pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW), s 15 – whether Court satisfied that the material would, if proved, justify the making of a continuing detention order – whether Court satisfied to a high degree of probability that offender poses an unacceptable risk of committing a serious sex offence if not kept under supervision

ADMINISTRATIVE LAW – “lockout laws” - declarations sought - whether improper subdelegation of regulation-making power by cls 53Y(1)(d) and 53Z(1)(d) of the Liquor Regulation 2008 – whether cls 53Y(1)(d) and 53Z(1)(d) ultra vires – construction of s 116I of the Liquor Act 2007 ADMINISTRATIVE LAW - whether decision of the first defendant unreasonable – whether decision made for an improper purpose – unnecessary to consider ground

PLEADINGS – amendment of pleadings – whether proposed amendments raise new issues – where defendants in possession of plaintiff’s expert obstetric opinion since April 2015 raising the issues now sought to be particularised – whether defendants prejudiced by proposed amendments

PRACTICE AND PROCEDURE – service – whether originating process duly served – whether one party agreed to accept service on behalf of another party under UCPR r10.6 – whether to stay proceedings on the grounds of a submission to jurisdiction clause

ADMINISTRATIVE LAW – judicial review – claim for compensation for injuries suffered in motor accident – Motor Accidents Compensation Act 1999 (NSW) – medical assessment – finding that injuries not caused by motor accident – no requirement for assessment of degree of permanent impairment – finding confirmed by review panel – application for judicial review – Supreme Court Act 1970 (NSW), s 69 – primary judge quashed certificate of review panel – jurisdictional error – causation – Motor Accidents Compensation Act 1999 (NSW), s 58(1)(d) – review panel failed to apply itself to real question posed by s 58(1)(d) – statutory function under s 58(1)(d) not exercised – jurisdictional error established ADMINISTRATIVE LAW – judicial review – motor vehicle accident – error on the face of the record – whether primary judge was correct to conclude that review panel erred in law by finding critical fact on basis of no evidence

DEFAMATION – defence – contextual truth – Defamation Act 2005 (NSW) s 26 – plaintiff pleaded imputation of paying to have defendant murdered – defendants pleaded contextual imputation of wanting to have defendant killed – whether contextual imputation capable of being conveyed “in addition to” plaintiff’s imputation – application of “differ in substance” test DEFAMATION – defence – qualified privilege at common law – reply to attack – where plaintiff’s reply attacks third party – whether plaintiff complicit in attack – whether sufficient that attack on third party necessary to vindicate plaintiff’s reputation – whether reply “commensurate with the occasion” DEFAMATION – practice and procedure – strike-out application – whether defences obviously untenable or unarguably bad PRACTICE – application for leave to appeal – whether different “rule” for defamation proceedings – stage at which issues of principle should be resolved

INSURANCE – indemnity insurance – crop insurance – where policy insured loss of potential yield of seed from lentil crop due to “impact of hailstones upon plant parts” – where hailstorm occurred – where crop unharvestable – where respondent insurer rejected claim that crop unharvestable due to hailstorm – where primary judge upheld appellant’s claim in part – where primary judge adopted yield loss assessment and reasoning of two experts – whether the expert opinions and assumptions underlying them were inconsistent with other findings of primary judge – whether primary judge erred in adopting those opinions – no question of principle

APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales- review of decision of single judge of appeal – nature of hearing – Supreme Court Act s 46(4) - where appeal dismissed as incompetent – where appeal concerned summary dismissal order under UCPR 13.4 – whether order interlocutory – whether leave required under Supreme Court Act 1970 s 101(2)(e) – where re-opening application dismissed by single judge of appeal – whether relevant error demonstrated – whether UCPR r 36.15(1) applicable – where allegation that respondents’ submissions misled the Court

ENVIRONMENT AND PLANNING – whether council has power to levy development servicing charges for provision of water supply to retirement village under Water Management Act 2000 (NSW), s 306 or Local Government Act 1993 (NSW), s 608 – whether application for compliance certificate must be made to council before power to levy charges arises – whether statutory provision for levying of annual charges for services provided by council precludes fees for services not provided annually – appeal dismissed with costs

REAL PROPERTY – compulsory acquisition of land – compensation – determination of entity with compensable interest in acquired land as between registered proprietor, mortgagor in default or incoming purchaser at date of compulsory acquisition EQUITY – general principles – priority and notice – competition between interests of mortgagor and purchaser under uncompleted contract for the sale of land – whether mortgagor’s interest subject to a properly exercised power of sale by mortgagee – whether breach of mortgagee’s duty owed to mortgagor when exercising power of sale under s 420A of the Corporations Act 2001 (Cth) or general law duty

PERSONAL PROPERTY – dispute between former business associates as to entitlement to fit out and stock in two retail stores – where purported transfer and re-transfer of business assets in context of liquidation proceedings – where property in different ownership may have been intermingled – whether appellant had an ownership interest in fit out and stock – whether primary judge erred in making affirmative declaration as to respondent’s ownership of disputed property – no question of principle CONTRACT – where agreements purported to resolve all outstanding interests between partners and associated entities – whether binding agreements determining extent if any of appellant’s interest in disputed property

REAL PROPERTY – possession – judgment for possession– no issue of principle PROCEDURE– adjournment to allow amendment to cross-claim and filing of evidence – where recent health concern of defendants put them at a disadvantage– where insufficient evidence to determine cross-claim

CRIMINAL LAW –co-accused seeks to cross-examine to rebut evidence that accused of good character – where co-accused conducting defence of duress – not suggested that evidence otherwise admissible to establish defence of duress – evidence adduced that this was the accused’s first time in custody – whether good character raised – whether relevant to other issues in trial – whether conscious decision of accused to raise good character – forensic mistake – whether accused should be disadvantaged by counsel’s mistake

CRIMINAL LAW – forensic patient – serious sexual offences found proven at a special hearing – limiting term about to expire – application for extension – regime under Schedule 1 to Mental Health (Forensic Provisions) Act similar to Crimes (High Risk Offenders) Act – moderately high risk offender – extension order made

PRACTICE AND PROCEDURE — Application for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance under UCPR 7.36 — Application unsupported by sufficient evidence — Defendant directed to provide further affidavit in support of application — In the interests of the administration of justice that defendant have legal proceedings having regard to the nature and complexity of proceedings — Further evidence of defendant’s means and capacity to obtain legal assistance outside of the statutory scheme inadequate — Application refused.

CRIMINAL LAW – sentence – accessory after the fact to murder – factors relevant to assessment of seriousness of offence – murder of extreme seriousness but acts of accessory limited - Crown acceptance offence towards lower end of range – plea of guilty and other mitigating factors – no practical utility in allowing parole period – fixed term sentence imposed

CORPORATIONS – external administration – liquidation – distribution of surplus – application for special leave to distribute surplus – where legal shareholding obscure but beneficial interest clear – leave granted to distribute to beneficiaries CORPORATIONS – external administration – liquidators – remuneration

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender – final hearing – interim supervision orders in place – psychiatric evidence – whether adequate supervision will be provided by an extended supervision order

SUCCESSION – family provision – claim by adult son – applicant suffering degree of functional impairment – history of financial dependence on testator – testator provided son with house and costs of maintenance during father’s lifetime – accommodation in significant disrepair – whether testator made adequate provision – adequacy of provision determined in context of pre-existing condition and station in life – relevant factors include size of estate, proportion conferred on respondent, respondent’s financial need – Succession Act 2006 (NSW), ss 59(1), 60(2) PRACTICE AND PROCEDURE – cross-appeal – challenge to grant of leave to bring proceedings out of time – basis of challenge that application for provision lacked merit – if correct, cross-appeal unnecessary – if incorrect, extension of time within discretionary judgment of trial judge – whether discretion reviewable on facts

APPEAL – leave to amend grounds of appeal out of time – whether prejudice to respondent – whether reasonable prospect of success based on proposed new ground – whether prejudice to appellant if not allowed to pursue proposed amended grounds TORTS – negligence – personal injury – collision causing injury during physical education warm-up game – adequacy of instructions – game played on asphalt surface – age of players – manner in which game played TORTS – causation – risk of playing on asphalt surface – injury not materialisation of risk

APPEAL – civil – error of law – construction of environmental planning instrument – whether proposed development prohibited ENVIRONMENT AND PLANNING – development application – rural tourist facility – whether wedding function venue permissible use – “tourist facilities” prohibited development – “rural tourist facility” innominate permissible use – whether definition of “tourist facility” exclusive of “rural tourist facility” ENVIRONMENT AND PLANNING – development consent – successful challenge to validity – terms of relief – absence of interlocutory orders – whether discretion as to operative date of invalidity STATUTORY INTERPRETATION – environmental planning instrument – indicators of illustrative non-exhaustive uses – whether “recreation” has different meanings in two provisions in the same instrument WORDS AND PHRASES – “recreation”, “tourist facilities”, “rural tourist facility”

CRIMINAL LAW – application for leave to appeal against sentence – robbery with offensive weapon – plea of guilty – further offence of robbery with offensive weapon taken into account on Form 1 – concession by defence counsel that offences committed “in company” – whether error in taking into account offences committed in company as an aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e) – error established – whether failure to give effect to finding of special circumstances justifying departure from statutory ratio of non-parole period – no error established – whether sentence was manifestly excessive due to error in approach to totality principle and failure to take into account delay CRIMINAL LAW – failure by defence counsel to raise arguments before sentencing judge – Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 – whether failure precludes intervention – justice demands intervention – leave to appeal granted – appeal allowed – applicant re-sentenced STATUTORY INTERPRETATION – construction of “in company” – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e)

BAIL APPLICATION – 17 year old – charged with intentionally doing an act in preparation for or planning a terrorist act – threatening posts on Facebook – psychiatric issues – history of threats and self-harm – significant improvement while in custody – whether exceptional circumstances established – whether applicant would pose an unacceptable risk if released – bail refused.

CRIMINAL LAW – conviction appeal – historic sexual offence – indecent assault on male – whether error in summing up – whether onus of proof reversed – no error disclosed – conviction appeal dismissed CRIMINAL LAW – application for leave to appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 6(3) – pleas of guilty to three of five offences – whether sentencing judge failed to apply sentencing practices of the time offences committed – whether sentencing judge had adequate regard to appellant’s age, ill health and delay – grounds of appeal do not disclose error CRIMINAL LAW – Crown sentence appeal – Criminal Appeal Act 1912 (NSW), s 5D – whether sentencing judge engaged in two-stage approach – whether sentencing judge made finding of special circumstances on matters already taken into account –– whether sentencing judge erred by determining that sentences for two offences be served concurrently – whether sentencing judge failed to have regard to general deterrence – whether sentence manifestly inadequate – three grounds of appeal disclose error CRIMINAL LAW – Crown sentence appeal – residual discretion to dismiss Crown appeal – Bugmy v The Queen [2013] HCA 37; 249 CLR 571 – impugned sentence within range – Crown appeal dismissed CRIMINAL LAW – sentencing – Kentwell v The Queen [2014] HCA 37; 252 CLR 601 – error of principle identified by Crown – whether error can be used to advantage of appellant – application of Kentwell to sentencing affected by error of principle regardless of who identifies error – Crown’s duty of fairness – obligation of Crown to draw error to attention of court or offender – integrity of criminal justice system – where error established, role of appellate court is not to assess effect of error – role of appellate court to recommence sentencing process – leave to appeal granted – appellant’s appeal allowed – appellant re-sentenced

CRIMINAL LAW– appeal against sentence– finding of special circumstances made– where not reflected in sentence–whether error– whether a lesser sentence is warranted

CRIMINAL LAW - Procedure - Powers and duties of prosecution as to calling of witness and presenting evidence - application of prosecutorial duties to regulatory bodies and authorities - whether error of judgement or deliberate tactical decision made to not call material witness - whether failure to call material witness amounted to miscarriage of justice – distinction between evidence witness likely to give and might theoretically give – whether any disadvantage demonstrated – whether any unfairness occasioned ENVIRONMENT AND PLANNING - building control - council consent and approval- whether development consent authorised demolition of façade