Cases and authorities

ADMINISTRATIVE LAW – appeal against decision of Civil and Administrative Tribunal – decision to set aside refusal by Children’s Guardian of a working with children clearance – whether applicant posed a risk to safety of children – whether hearsay evidence of untried allegations admissible – absence of witnesses for cross-examination – rules of evidence not applicable – denial of procedural fairness

CLASS ACTION – fire at Springwood – tree fell on live conductors – proceedings brought against power company – in principle settlement arrived at after five week trial – consideration of proposed settlement distribution scheme – whether fair and reasonable in interests of class members – motions brought by insurance intervenors for payment from settlement – reasons for provisional approval of settlement – prospects of success of claim an important factor – date fixed for objections to be made – proposed settlement fair and reasonable – provisional approval given.

CRIMINAL LAW – application to discharge individual juror – misconduct – reasonable apprehension of bias – other reasons affecting juror’s ability to perform functions of a juror – relevance of judge’s observations of juror’s conduct – whether judge’s observations “evidence before the court” – “autoptic proference” – repeated smiling and staring at particular accused – where another accused is conducting a defence of duress – where duress involved threats alleged to come from accused subject of the juror’s particular attention – risk of substantial miscarriage of justice – where previous application to discharge juror failed – importance of random selection of jury – reluctance of judge to interfere with random selection

COSTS – whether Court at first instance has power to make a costs order in proceedings which have been the subject of an appeal

PRODEDURE - Judgments and orders – amending, varying and setting aside – consent orders

PRACTICE AND PROCEDURE – Notice of Motion – stay of proceedings pending payment of costs of interlocutory application – order for stay sought to be set aside – stay order set aside PRACTICE AND PROCEDURE – Notice of Motion – deficiencies in Notice of Appeal – application to strike out Notice of Appeal as incompetent – appeal not incompetent – application for orders under Vexatious Proceedings Act 2008 (NSW) – no basis for orders – application for summary dismissal – whether any arguable grounds of appeal – exclusion of evidence – evidence capable of being relevant to issue of testamentary capacity – exclusion arguably erroneous – inappropriate to order summary dismissal – appeal to proceed on filed Notice of Appeal – Notice of Motion dismissed

ESTOPPEL – issue estoppel by consent orders – where finding also made by consent that respondent had “fully recovered” from effects of any psychological injury – where subsequent claim for compensation for permanent impairment – where existence of asserted issue estoppel inconsistent with statutory scheme as to jurisdiction of Workers Compensation Commission – whether consent orders gave rise to issue estoppel for purposes of determining that there was any “medical dispute” as to permanent impairment and as to how such a dispute should be resolved WORKER’S COMPENSATION – claim to compensation for permanent impairment under s 66 of the Workers Compensation Act 1987 (NSW) – appeal from decision of Presidential member of Workers Compensation Commission remitting claim for medical assessment of degree of permanent impairment as a result of injury – whether findings in same or earlier proceedings between parties binding for purpose of determining claim for permanent impairment – operation of ss 293 and 321 of Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CORPORATIONS — Winding up — Winding up in insolvency – Adjournment of winding up application — where administrators of company were appointed immediately prior to hearing of the winding up application – where administrators applied for a short adjournment of the winding up application in circumstances that a secured creditor indicated intention to offer deed of company arrangement – whether it is in the interests of company’s creditors that company continue under administration rather than be wound up. CORPORATIONS — Winding up — Winding up in insolvency – where winding up application had been in existence for nearly six months – whether the Court should extend period within which winding up application must be determined under s 459R of the Corporations Act 2001 (Cth).

PROCEEDS OF CRIME – confiscation – application for unexplained wealth order – no defence or appearance by defendant – consideration of method of calculation required under s 28B of the Criminal Assets Recovery Act 1990 (NSW)

JURISDICTION OF COURTS – transfer of proceedings – from District Court to Family Court – whether transfer in the interest of justice

COSTS – Administrative Law – summons dismissed with costs – plaintiff argues for no costs on basis of general issue of importance and “misconduct” of defendant – neither argument made out – no good reason to exercise discretion in a manner other than ordinary course – costs should follow the event.

APPEAL – question of law – construction of clause in commercial contract – principles of construction – ambiguity – decision below concluded no meaning to clause – appeal allowed; CONTRACT – guarantee or indemnity – strictissimi juris – principles of construction of surety contract – common sense, commercial construction – appeal allowed.

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – assessment of future economic loss claimed as a buffer under s 126 – failure to state assumptions that accord with the defendant’s most likely future circumstances but for the injury

APPEAL – Local Court – plaintiff ordered to provide DNA sample pursuant to s 75ZC of the Crimes (Forensic Procedures) Act 2000 (NSW) – plaintiff an untested registrable person under Part 7B – whether Magistrate determined that the ordering of the forensic procedure was justified in all the circumstances – whether particular matters must be considered in determining that the ordering of the procedure is justified in all the circumstance – whether the matter should be remitted to the Local Court for redetermination

CRIMINAL LAW – sentence appeal – whether trial judge erred in assessing objective seriousness of offence – murder – victim under three years’ age – applicant in a position of trust – gross abuse of trust by a series of assaults – failure to seek medical attention that may have prevented death – whether trial judge erred in failing to give any weight to applicant’s onerous gaol conditions in protective custody including applicant’s claims as to ongoing fear of violence and hyper-vigilance – no such error established – the sentence was not manifestly excessive – objective gravity of offence properly assessed as ‘well-above the mid-range of offences of murder and approaching the worst case of murder’ – absence of subjective factors of significance

CRIMINAL LAW – evidence – tendency and coincidence evidence – whether error in failing to consider tendency and/or coincidence evidence cumulatively – whether error in failing to consider tendency and/or coincidence evidence in the context of the whole of the evidence adduced by the Crown

CRIMINAL LAW – appeal – appeal against sentence –interstate offending – totality principle – assessment of rehabilitation in context of interstate imprisonment CRIMINAL LAW – appeal– appeal against sentence– rejection of expert report as to risk of reoffending by sentencing judge– whether reasons for rejection adequate – where reasons for decision made clear

CRIME – sentence appeal – aggregate sentence for two counts of robbery with offensive weapon – whether applicant’s mental state relevant in determining objective gravity of offending – whether undue weight on specific deterrence given applicant’s mental illness – whether erroneous application of guideline judgment in R v Henry

CRIME – conviction appeal – jury direction – jury’s views as to reliability or credibility of complainant – use of reasonable doubt with respect to one charge in assessing another charge – conviction on one count and acquittal on second count – whether jury direction adequate – whether verdicts inconsistent - whether conviction an unreasonable verdict CRIME – sentence appeal – Local Court jurisdictional limit – theoretical possibility that conviction could have been dealt with in Local Court – whether District Court took into account jurisdictional limit of Local Court – how that factor may affect sentence

CRIMINAL LAW – appeals – sentencing – whether sentencing judge failed to give effect to finding of special circumstances – whether sentence manifestly excessive

EQUITY – accounts – fiduciary relationships – accountant and client – whether relationship a fiduciary one in the particular circumstances of the case – whether accounting relationship exists where corporate trustee interposed EQUITY – accounts – wilful default – grounds – whether established LIMITATIONS – equity – accounts – legal bar applies by analogy

PRACTICE & PROCEDURE – application for expedition and change of venue – whether in the interests of justice – where plaintiff suffers from psychiatric condition allegedly related to the events giving rise to the proceedings – whether delay unusual – whether plaintiff at risk if earlier hearing not arranged – where necessary to balance the competing interests of the parties – application refused

EVIDENCE – whether telephone intercept evidence relevant – telephone conversations between the accused and his then girlfriend – where multiple competing inferences open the evidence – evidence relevant EVIDENCE - application under s 137 of the Evidence Act 1995 (NSW) – whether probative value of telephone intercept evidence outweighed by danger of unfair prejudice – probative value of evidence weakened by existence of multiple available inferences – danger of unfair prejudice – evidence excluded

PRACTICE AND PROCEDURE – injunctions – freezing order – whether order should be made to extend freezing order – where plaintiff has commenced proceedings against defendants in People’s Republic of China – where if successful plaintiff will seek to enforce judgment against defendants in Australia – where there is a danger of non-satisfaction of the prospective judgment in People’s Republic of China

JUDGMENT AND ORDERS – gross sum costs order made – application by judgment debtor for instalment order – relevant considerations discussed – onus not discharged by applicant CORPORATIONS – winding up – statutory demand – application for order setting aside – where creditor owes debtor a larger sum in respect of shareholder loans which will become due and payable only if and when creditor decides to pay – whether existence of such debt constitutes “some other reason” within s 459J(1)(b).

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk sex offender – preliminary hearing – interim supervision order - appointment of experts to conduct psychiatric examination

COSTS - application for a specified gross sum costs order (“a lump sum costs order”) against the third defendant pursuant to Civil Procedure Act, s 98(4)(c) - previous costs orders made against third defendant - lengthy and complex litigation - third defendant is impecunious - whether the Court should make a lump sum costs order - whether the successful party may be disadvantaged by a formal costs assessment.

CONVEYANCING – the contract and conditions of sale – deposit – vendor accepted guarantee for deposit – guarantee expired prior to completion of contract – whether obligation to pay deposit suspended until expiry of guarantee – whether purchasers remained subject to obligation to pay deposit – whether vendor entitled to terminate contract for failure to pay deposit EQUITY – equitable remedies – specific performance – whether purchasers’ conduct amounted to repudiation or abandonment of contract – whether purchasers are ready, willing and able to perform

CRIME – high risk violent offender – preliminary hearing – application by the State for interim detention order – where offender would consent to an interim supervision order – proper approach to determination of application – where COSP accommodation refused to offender – prospect of constructive fetter on Court’s discretion

REFEREES - nature of proceedings on challenge to Referee’s Report DAMAGES - where plaintiff relied upon expert’s advice in respect of the scope of works to rectify defects - where defendants had warned plaintiff that scope of works was exploratory, speculative and not urgent - where findings made that the work carried out was not urgent - where works found to be unnecessary and excessive - where Referee found that defendants not liable for such work - whether those aspects of Referee’s Report should be rejected DAMAGES - where failure to comply with relevant Standard - where technical breach - whether plaintiff entitled to remedial work to achieve contractual conformity

COSTS – where proceedings for dissolution of partnership – where separate issue as to whether Option validly exercised – determination of issues so that parties’ respective shareholding determined and appropriate distribution on dissolution – appropriate costs order in the circumstances

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether order preventing enforcement of an adjudication determination should be continued on the ground that the beneficiary of the determination is insolvent or at substantial risk of becoming insolvent

SUCCESSION – family provision – claim by adult daughter – substantial estate – deceased had two daughters – after a number of specific gifts most of estate given to older daughter and the children of the older daughter – younger daughter brings claim under Succession Act, s 59 – claimant conceded to be an eligible person under Succession Act, s 57 - whether adequate provision made for the maintenance and advancement in life of the plaintiff under the will of the deceased – if not, what provision should be made for the plaintiff.

PRACTICE & PROCEDURE – appeals – summons for leave to appeal out of time –whether extension of time should be granted – no relevant injustice – no explanation for delay in filing summons – proposed draft notice of appeal substantially abandoned at hearing

APPEAL – application for leave – where question proposed in appeal whether respondent a “fit and proper” person – where same question addressed by this court in its original jurisdiction and decided adversely to respondent – whether any utility in public interest in appeal proceeding – leave to appeal refused

CRIMINAL LAW – proceeds of crime – application for exclusion from restraining order – application for forfeiture order – whether forfeiture application should be heard before exclusion application – Proceeds of Crime Act 2002 (Cth), ss 31 and 49 PRECEDENTS – uniform national legislation – decision of intermediate appellate court – duty of other such courts and single judges to follow

CIVIL PRACTICE AND PROCEDURE– summary dismissal proceedings– alleged breach of contract– where plaintiffs have no prospects of success

CONTRACT — Deceased made a will leaving entire estate to the plaintiff — Plaintiff provided services and made payments for the deceased in the belief that he would inherit the deceased’s estate — Deceased changed his will without informing the plaintiff — Whether testamentary contract entered into between the plaintiff and deceased — Deceased did not promise to make a will in the plaintiffs favour and not revoke it — Parties did not intend to enter into a contract — No testamentary contract found; ESTOPPEL – Proprietary estoppel — Whether executrix of deceased’s estate estopped from denying that the plaintiff is to inherit the deceased’s estate — Deceased knew plaintiff expected to inherit his estate — Deceased feared plaintiff would cease offering assistance if informed of changes to the will — Plaintiff knew deceased could change his will — Whether plaintiff would have continued to assist the deceased had he known of changes to the will — Not unconscionable for deceased to depart from state of affairs that plaintiff assumed would obtain — Proprietary estoppel not established; RESTITUTION - Whether deceased’s estate unjustly enriched by plaintiff’s actions — Plaintiff laboured and made payments for expenses incurred by the deceased under a present mistake of fact — Plaintiff entitled to reasonable remuneration

LIMITATION OF ACTIONS – limitation period – recovery of statutory debt – whether debt constituted a penalty – whether accrual of cause of action dependent on Authority’s state of knowledge as to employer’s liability and amount due – Limitation Act 1969 (NSW), ss 14, 18 WORKERS’ COMPENSATION – workers’ compensation insurance – failure of employer to obtain insurance – statutory entitlement of WorkCover Authority to recover debt from employer – whether penalty – whether statute-barred

TORTS – duty of care – workplace injury – whether duty owed by principal to employee of subcontractor – back injury suffered while restacking pallets during unloading process – work undertaken on premises of third party – principal not controlling subcontractor’s activities – principal not responsible for coordination of activities in loading dock – system of work not devised by principal

LANDLORD AND TENANT – two long term commercial leases between same parties in same building – statutory charges and outgoings – lessee requiring payment as additional rent of any increase in outgoings “in respect of the Premises” – whether lessee obliged to pay whole of increase in outgoings, or proportionate share of increase in outgoings – construction of “in respect of the Premises” in each lease

TORTS – negligence – personal injury – where appellant collided with glass sliding door – where CCTV footage of the collision was tendered at trial – where expert witness gave conflicting evidence regarding the CCTV footage – whether the primary Judge erred in rejecting the appellant’s factual account of the collision – whether the primary Judge erred in giving weight to the CCTV footage – whether the primary Judge erred in his assessment of damages APPEAL – civil – Notice of Motion seeking leave to adduce further evidence on appeal – whether there are grounds for adducing the further evidence

CRIMINAL LAW – application for extension of time to seek leave to appeal sentence – unrepresented applicant – dishonestly obtaining financial advantage by deception – s 178BA(1) of the Crimes Act – medical and cognitive issues appropriately considered in sentencing exercise – no principled basis shown for accepting fresh or new evidence of medical issues or experience of protective custody – sentence not manifestly excessive for sustained and serious offending – application refused due to lack of merit

CRIMINAL LAW – CONVICTION APPEAL – thirteen counts of acts of violence and sexual assault – applicant convicted of nine counts but acquitted of four counts – whether verdicts of guilty supported by evidence – whether direction as to recklessness gave rise to a miscarriage of justice – whether inconsistent verdicts – ample evidence to support convictions – rational and logical explanation for not guilty verdicts – direction as to recklessness wrong but irrelevant – appeal against conviction dismissed – SENTENCE APPEAL – whether error by sentencing judge in refusing to make a finding of special circumstances – no error disclosed – refusal to find special circumstances open – leave to appeal against sentence refused.

REAL PROPERTY – mortgages – possession of land – defendant made bankrupt after defence filed – trustee not taking any steps to defend or prosecute cross-claim – defence struck out

PRACTICE AND PROCEDURE – notice of motion – whether applicants are able to rely on existing valuations – whether applicants are able to rely on prior expert reports – no question of principle

DEFAMATION – costs – where first plaintiff a company and no longer listed – where second plaintiff joins proceedings – settled

PROCEDURE – application against individual plaintiff for security for costs – action for defamation – where plaintiff recently largely unsuccessful in similar action against different defendant – apparent impecuniosity – whether proceedings should be stayed pending payment of security for costs

JUDICIAL REVIEW – review by Medical Assessment Service Review Panel of original medical assessment – where plaintiff claimed to suffer Post‑Traumatic Stress Disorder with Major Depressive Disorder as a result of a motor vehicle accident – whether the Review Panel failed to take into account a relevant consideration – whether the Review Panel breached the rules of natural justice – whether the Review Panel failed to address a substantive claim arising on the evidence – whether the Review Panel committed jurisdictional error

WILLS, PROBATE AND ADMINISTRATION – testamentary instruments – deceased left behind a 1989 will and a 2010 informal document – informal document witnessed by only one witness – whether the informal document purports to state the deceased’s testamentary intentions in accordance with the Succession Act 2006 (NSW), s 8 – consideration of circumstances in which the document was executed – held deceased and beneficiary had a very close relationship – held plaintiff and her witnesses were credible witnesses – held the informal document is a valid will and testament of the deceased – letter of administration granted to the plaintiff