Cases and authorities

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender – extended interim supervision order sought– where dispute only as to conditions of order

PRACTICE AND PROCEDURE – civil – Notice of Motion seeking leave to amend Statement of Claim and adjournment of hearing – whether it is in the interests of justice to make the orders sought

PRACTICE AND PROCEDURE — Application for summary judgment — Plaintiffs and defendants provided a guarantee and indemnity in respect of a loan — Plaintiffs discharged loan — Plaintiffs seek contribution from co-guarantors — First defendant failed to file a defence to the plaintiffs further amended statement of claim — First defendant did not provide any evidence in response to plaintiff’s notice of motion for summary judgment — First defendant unable to make any submission suggesting any defence to plaintiff’s further amended statement of claim— Plaintiffs entitled to summary judgment against first defendant.

ADMINISTRATIVE LAW – jurisdictional error –– where Minister has extended the time for provision of security under a mining lease on numerous occasions – where plaintiff given notice of consequences of not providing the security – where Minister had given plaintiff an opportunity to be heard and considered plaintiff’s position before causing notice suspending mining activity to be issued – whether decision of Minister to not allow plaintiff further time to provide security so unreasonable as to bespeak jurisdictional error – whether decision amounts to Wednesbury unreasonableness

CORPORATIONS – registered management investment scheme – civil penalty proceedings – contraventions admitted by defendant – statement of agreed facts and joint submissions on relief and penalty before the court – need for court nevertheless to exercise judgment – declarations and orders made in agreed form.

ADMINISTRATIVE LAW – appeal from decision of the New South Wales Civil and Administrative Tribunal refusing an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – plaintiff convicted of a disqualifying offence in 1973 – whether the Tribunal erred in finding that a plea of guilty meant that the police facts are considered to be proven factual circumstances – whether the Tribunal gave adequate reasons – failure to address applicant’s case sufficiently – grounds made out – decision set aside – application remitted to the Tribunal

COSTS – security for costs – where plaintiffs are arguably impecunious – whether plaintiffs’ financial position caused by the defendant – where defendant has filed no defence to the statement of claim – where strength of the plaintiffs’ case cannot be judged before a defence has been filed

ADMINISTRATIVE LAW – visiting medical officer received Warning Letter – subject of adverse findings in report – consideration of suspension – possible report under s 99A of Health Services Act 1997 – status of visiting medical officer – whether position created under or regulated by statute – issue of Warning Letter – whether amenable to judicial review – whether step taken under and for purposes of Health Services Act 1977 – whether apt to affect interest of visiting medical officer – HELD – no obligation to afford natural justice in relation to Warning Letter – external expert engaged to provide report – whether report is step taken under and for purposes of Health Services Act – whether report apt to affect interest of plaintiff – HELD – no obligation to afford procedural fairness prior to making report – suspension decision – whether injunction should issue to restrain suspension – whether plaintiff demonstrated sufficient likelihood that breach of natural justice will occur – HELD – likelihood of breach not established – summons dismissed

ADMINISTRATIVE LAW – judicial review – review of decision of Appeal Panel – whether Appeal Panel asked the wrong question and/or misapplied the delegated legislation to the facts when it used the “Combined Values Chart” to calculate whole person impairment – whether the Appeal Panel erred in its decision to apply a 50 percent deduction for a pre-existing condition – whether Appeal Panel failed to provide reasons for decision

PROCEDURE – service of originating process – extension of time – statement of liquidated claim filed almost six years after tax invoices had been rendered – service not effected until some nine months later – primary judge refused to grant an extension of time for service – whether primary judge failed to give reasons – whether primary judge erred in considering there was no power to extend time, or in the exercise of discretion – whether on appeal an order should be made extending time in circumstances where there had not been a full explanation for the delay, and aspects of the explanation were unsatisfactory

EQUITY – trusts – where payment made by trustees to third party out of trust assets to settle separate proceedings against trustees personally for misapplication of trust assets – whether beneficiary consented to breach of trust – knowing receipt – whether appellant who received trust property had knowledge of breach of trust so as to be liable under first limb of Barnes v Addy – where releases contained in two separate deeds – whether a knowing recipient of trust property can rely on release clauses excluding liability of trustees for breach of trust – whether rescission of both deeds a precondition to relief – whether entire agreement clauses in each deed precluded release in one deed operating in relation to claim for breach in respect of the other – whether substantial restitution possible – whether defences of laches, acquiescence, delay should have been upheld APPEAL – apprehended bias – whether primary judge should have recused himself for having heard earlier application for appointment of new trustees

CRIME – conviction appeal – murder – jury direction – directions on self-defence – question trail – whether formulation of test of self-defence in question trail confusing – whether question trail improperly shifted burden of proof from prosecution – whether question trail allowed for alternative manslaughter conviction CRIME – sentence appeal – manifestly excessive – whether offence part of planned criminal activity - whether aggravating factor incorrectly identified in statute constitutes material error – whether provocation as mitigating factor in sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n), s 21A(3)(c) CRIME – standard of proof – whether reference in trial judge’s directions to “reasonable possibility” undermined the standard of proof beyond reasonable doubt

CRIMINAL – Appeal – Sentence – whether sentence manifestly excessive – break and enter with intent to commit larceny – delay in prosecution

SUCCESSION — Family provision — Application by the defendant under s 95 of the Succession Act 2006 (NSW) for the approval of the release of the plaintiff’s right to make an application for a family provision order — Plaintiff had previously signed an agreement releasing her right to make an application for a family provision order — Whether the Court should approve the release — The making of the release was not advantageous to the plaintiff nor fair and reasonable — Plaintiff did not receive informative independent advice before signing the agreement — Plaintiff coerced into giving the release — Release not approved — Application by the plaintiff for family provision order under Pt 3.2 of the Succession Act 2006 (NSW) — Plaintiff is the widow of the deceased — No provision made for the plaintiff under the will of the deceased —Three children of the deceased to inherit on attaining the age of 25 years — Majority of the deceased’s estate consists of the proceeds of the sale of a property sold to the deceased by his mother at a substantial undervalue — Whether adequate and proper provision not made in will of the deceased for the plaintiff — Plaintiff has no financial buffer for adverse contingencies —Plaintiff responsible for two of the deceased’s children — Deceased’s moral obligation to attempt to ensure his children have a stable financial environment in which to grow up not provided for — Provision made for the plaintiff out of the estate of the deceased

PRACTICE AND PROCEDURE – application to vary the conditions of a stay – whether applicants have financial resources to comply with conditions of the stay – whether there has been sufficient change of circumstances to warrant variation of the conditions

COMPROMISE – disable person – application by tutor for approval of settlement – settlement in best interests of disable person

CRIMINAL LAW – application for directed verdict – shoot with intent to murder – accessory before the fact – principal in the third degree – extended joint criminal enterprise – where accused alleged to solicit murder of specified target – shotgun discharged at or into motor vehicle occupied by three persons – where person other than intended target injured – where uninjured person nominated in indictment – where evidence of principals did not include that they acted with intention to kill – whether case to answer – inferences available from physical evidence

CRIMINAL LAW – application for directed verdict – supply prohibited drugs – deemed supply – whether evidence capable of establishing possession – circumstantial case – question for jury whether other inference available – application refused

CRIMINAL LAW – application for directed verdict – whether evidence capable of establishing charge – joint criminal enterprise – bungled enterprise – Little Crazy’s mother – gangland war – Brothers for Life – whether crime actually committed part of agreed criminal enterprise – where accused allegedly directed shooting of one townhouse – where shooter shoots a person and a different townhouse in the same townhouse complex – whether original criminal enterprise came to an end – where Crown case weak or tenuous – limited power to direct a verdict of not guilty

CRIMINAL LAW – application for directed verdict – solicit to murder – attempted murder – shoot with intent to cause grievous bodily harm – whether case to answer – extended joint criminal enterprise – where accused leader of criminal gang – Brothers For Life – where accused orders the shooting and murder of a number of named targets – where accused travels overseas leaving his brother in charge of gang – where brother orders execution of a victim not nominated – where victim specifically excluded from group of targets nominated by the accused – whether shooting caught by concept of extended joint criminal enterprise – whether evidence capable of proving solicitation of murder and attempted murder within scope of joint criminal enterprise – whether evidence capable of establishing accused contemplated commission of crime outside scope of original enterprise

CIVIL LAW – high risk sex offender – final hearing – application for a continuing detention order – interim detention order in place – whether adequate supervision will be provided by an extended supervision order

CRIMINAL LAW – application for directed verdict – whether evidence capable of establishing charge – joint criminal enterprise – bungled enterprise – Little Crazy’s mother – gangland war – Brothers for Life – whether crime actually committed part of agreed criminal enterprise – where accused allegedly directed shooting of one townhouse – where shooter shoots a person and a different townhouse in the same townhouse complex – whether original criminal enterprise came to an end – where Crown case weak or tenuous – limited power to direct a verdict of not guilty

CONTRACTS – construction – loan agreement as part of managed investment scheme – whether advancement of funds authorised by loan agreement – whether payment for “Hectares” pursuant to loan agreement required transfer of interest in land CONTRACTS – loan agreement – whether funds in fact advanced – whether assignee of lender entitled to issue Dobbs certificate

CONTRACT – construction – whether amendment of trust in breach of trust deed – whether early retirement benefits clause conferred accrued benefit – meaning of “accrued benefit” – whether amendment authorised by amendment power in trust deed EQUITY – trusts – right of member of superannuation fund – whether object of discretionary power of appointment or beneficiary with contingent beneficial interest EQUITY – trusts – trustees – duties – whether breach of duty to act in best interests of beneficiaries STATUTORY INTERPRETATION – whether power of amendment exercised in the “best interests of the beneficiaries” under s 52(2)(c) Superannuation Industry Supervision Act 1993 (Cth) STATUTORY INTERPRETATION – whether trust amendment in breach of reg 13.16 Superannuation Industry (Supervision) Regulations 1994 (Cth) – meaning of “accrued benefits” in reg 13.16 EQUITY – estoppel – promissory estoppel – entitlement to pension – whether representation that respondent would not be terminated early COSTS – indemnity costs

SENTENCE APPEAL – totality principle – applicant sentenced for break and enter offence that occurred close in time to a similar offence for which he had served a period of imprisonment and which had expired – significant delay between commission of offence and sentencing – totality principle not raised at sentencing hearing – sentencing judge was obliged to take previous sentence into account in sentencing as part of the instinctive synthesis – failure to take totality principle into account resulted in sentencing discretion miscarrying – appeal allowed – applicant re-sentenced

CRIMINAL LAW – conviction appeal – rejection of evidence at trial – whether miscarriage of justice had occurred requiring a re-trial – appellant convicted of 17 counts of sexual offences of various kinds against his step-daughter – prosecution case almost entirely dependent on evidence of complainant – appellant sought to lead evidence from a gynaecologist that it was unlikely that the complainant was pregnant at a particular point in time – evidence rejected as irrelevant – issue whether evidence should have been admitted – by a majority appeal dismissed.

CRIMINAL LAW – murder – appeal against conviction – circumstantial Crown case – whether controlled operation unlawful – whether fresh evidence of absence of DNA should be received – whether trial counsel incompetent – whether verdict unsafe and unsatisfactory – no ground established – appeal dismissed

CRIMINAL LAW – Crown appeal against sentence – armed robbery with a dangerous weapon – handgun – whether objective gravity of offence was at the lower end of the range of seriousness – whether the sentencing judge erred in use of sentencing statistics and comparable cases – whether it was open to find exceptional circumstances – whether sentence was manifestly inadequate – appeal allowed – respondent resentenced

CONTRACT – formation – offer and acceptance – email correspondence regarding settlement of dispute – where parties agreed on terms in email correspondence but did not execute formal document – whether the parties reached a binding agreement to settle the dispute – whether the subsequent conduct of the parties was consistent with the existence of a binding agreement PROCEDURE – civil – cross-claim – Notice of Motion seeking declaration of settlement of cross-claim

COSTS – application for indemnity costs

EVIDENCE – application for evidence to be given by audio visual link in a criminal trial – objection taken by accused – concession by counsel for accused that witness is an important witness – consideration of factors in s 5B of Evidence (Audio and Audio Visual Links) Act 1988 – application granted

PROCEDURE – application to cross-vest proceedings to Supreme Court of Victoria – whether it is in the interests of justice to cross-vest proceedings – whether Supreme Court of Victoria is the more appropriate or natural forum – where there are competing connecting factors – where balance of factors favours Supreme Court of Victoria – s 5(2)(b) Jurisdiction of Courts (Cross-vesting)act 1987 (NSW)

PRACTICE AND PROCEDURE – explanation of effect of order requiring plaintiffs to serve points of claim and defendants to serve points of defence – no issue of principle

CRIMINAL LAW – sentence – manslaughter – substantial impairment by abnormality of mind – minimal degree of impairment – death of offender’s de facto husband committed in company – planned – use of intoxicating substance – early plea of guilty – assistance to authorities – remorseful – good prospects of rehabilitation

PROCEDURE – judgment delivered on 24 November 2015 – Court informed during five subsequent directions hearings that parties’ experts are attempting to agree upon a form of final relief – on 6 June 2016 a date fixed on 31 August 2016 for final relief hearing - Court informed by counsel that timetable for presentation of expert evidence is now delayed – counsel by consent request to vacate fixed date of 31 August 2016 for final relief hearing – Court not confident that experts will reach agreement as to relief - whether the Court should vacate date of final relief hearing.

CRIMINAL LAW – accessory after the fact to murder – application to sever trial of alleged accessory from that of principal – where evidence against principal said to be inadmissible against accessory and prejudicial to him – application refused

CRIMINAL LAW – sentence – murder – committed in company – murder of co-offender’s de facto husband – planned – use of intoxicating substance – intention to kill – no remorse – disposal of deceased’s body – good prospects of rehabilitation – no relevant prior convictions – firearms offences on Form 1

COSTS – successful application by insured plaintiff for leave for separate legal representation in order to defend the first cross-claim – costs order made requiring plaintiff to pay defendants costs of the notice of motion – application by insured plaintiff for insurer to pay both the defendants costs and its costs of the notice of motion – application resisted by insurer in respect to costs of insured plaintiff – order in principal judgment of benefit to both insured plaintiff and insurer – insurer to pay defendants costs and each party to pay own costs of the notice of motion in respect of insurer and insured plaintiff

CORPORATIONS – Corporations Act 2001 (Cth) – s 440J(1) provides that during the administration of a company a guarantee of a liability of the company cannot be enforced as against a director of the company who is a natural person and that a proceeding in relation to such a guarantee cannot be begun against such a director, except with the leave of the Court – proceedings on a guarantee given by a director were begun before the administration – whether s 440J(1) applies to such proceedings – HELD the section does not apply

CORPORATIONS – liquidator’s lien over property of company – priority over charges over property of company for remuneration and expenses of care, preservation and realisation of property – caveats lodged after date of contract for sale for liquidator to sell property – caveats based on charges allegedly granted by company before commencement of winding up – validity of charges questionable – consideration of work reasonably required of liquidator in the care, preservation and realisation of the property in the context of securing the withdrawal of the caveats to permit completion of the contact for sale – liquidator’s claim for amount of remuneration and expenses supported by lien in priority to charges excessive – no order made at this stage on liquidator’s claim for payment to him of balance of proceeds of sale of property paid into court after completion of contract for sale. CORPORATIONS – determination of liquidator’s entitlement to remunerations and expenses for the care, preservation and realisation of the company’s property – remuneration and expenses to be determined separately – consideration of relevance of reasonable remuneration as a proportion of amount realised by liquidator – consideration of proper basis for claim for remuneration by liquidator.

TORTS – negligence – personal injury – slip and fall – determination of separate questions – whether the defendant’s breach of duty of care caused the plaintiff’s injuries – whether the plaintiff is guilty of contributory negligence

EVIDENCE – admissibility – hearsay evidence – exceptions – civil proceedings if maker not available – Evidence Act 1995, s 63 – whether the plaintiff is mentally or physically unable to give the evidence

COSTS – leave to appeal – omitted order – costs to follow the event – no issue of principle

APPEAL – criminal conviction – leave to appeal – challenge to findings in judge-alone trial – assessment of expert evidence as to reliability of eye-witness testimony – whether verdict unreasonable CRIME – murder – leave to appeal conviction – judge- alone trial – expert evidence on witness testimony and memory contamination – whether error in discounting evidence of expert witness – whether failure to assess reliability of evidence of key witness EVIDENCE – expert evidence – forensic psychology – reliability of witness’ memory – expert evidence on phenomenon of unconscious contamination of perceptions by subsequently acquired information and internal processes of reconstruction – whether reasoning as to contamination based on misunderstanding of witness’ evidence – whether evidence of post-event information supported theory of witness’ memory contamination – whether delay in giving of witness’ account supported contention of contamination

CRIMINAL LAW – appeal against sentence – ongoing supply of firearms – s 51B(1) of the Firearms Act 1996 (NSW) – where judge found causal connection between psychiatric conditions and offending conduct – judge failed to adequately take that finding into account in assessment of moral culpability and in moderating weight given to general deterrence – necessary to re-exercise sentencing discretion – appeal allowed

CRIMINAL LAW – fraud - application for leave to appeal against sentence – extension of time granted – grounds without merit – application for leave to appeal against sentence refused

CRIMINAL LAW – application for leave to appeal against sentence - whether sentencing judged erred in failing to take into account relevant mitigating factors when imposing head sentence – whether sentence manifestly excessive – application of Henry guideline

CRIMINAL LAW – sentence appeal – ZREIKA – six armed robbery and aggravated armed robbery charges with three armed robberies on a Form 1 – aged 18½ at time of offending – armed with a firearm on six occasions – whether aggregate sentence manifestly excessive – leave to appeal granted but appeal dismissed – ELSAJ – four charges of armed robbery and aggravated armed robbery and one charge of robbery in company with wounding – whether totality principle observed – whether sentence imposed manifestly excessive – whether sentencing judge appropriate took into account features which increased the seriousness of the offending – whether adequate weight given to the finding of special circumstances – whether parity principle observed – leave to appeal granted but appeal dismissed.

Criminal law - murder – inferences available – one punch plus theft – substituted verdict not available.

Criminal law – no evidence from accused – failure to give Azzopardi direction – accused old and non-parole period served but acquittal not appropriate