Cases and authorities

CORPORATIONS – winding up – statutory demand – application for order setting aside – jurisdiction – need for s 459G application to be made not later than 21 days after service of statutory demand – statutory demand served by post – no party adduces evidence of time of receipt – whether plaintiff bound to adduce such evidence to establish jurisdictional fact – held plaintiff not so bound CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debt

BUILDING AND CONSTRUCTION – adjudication determination – whether failure to serve submissions constituted a jurisdictional error or a breach of the rules of natural justice EQUITY – fraud – setting aside determination obtained by fraud

LANDLORD AND TENANT – Retail shop lease – purported exercise of option to renew – concession that the term of the lease stipulating alternative methods for ascertaining the rent was rendered void by s 18(3)(c) of the Retail Leases Act 1994 (NSW) – whether renewed lease void because of absence of an essential term – whether lessee was a tenant at will entitled to give one month’s notice terminating the tenancy pursuant to s 127(1) of the Conveyancing Act 1919 (NSW).

APPEAL – application for leave to appeal – circumstances where grant of leave appropriate – discretionary determination – relevance of sum in issue

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused

BAIL – Crown application for detention – Serious offending – Where some of the alleged offending was committed whilst on bail – Strong Crown case – Inevitable custodial sentence if convicted – Reduction in level of immediate family support since respondent’s initial release – Cause not shown – Detention application granted

CRIMINAL LAW – Crown appeal against sentence – attempt to intentionally choke – s 37(1) of the Crimes Act – where offence committed whilst on parole – non-parole period substantially concurrent with service of balance of parole - no error in backdating sentence where parole revoked solely because of index offences – no failure to adequately consider the protection of the community or specific deterrence where previous violent offending occurred in significantly different circumstances – sentence not manifestly inadequate – appeal dismissed

CRIMINAL LAW – sentence appeal – one count of supplying a commercial quantity of methylamphetamine and one count of supplying a large commercial quantity of methylamphetamine – whether disparity with sentence of co-offender who pleaded not guilty – whether justifiable sense of grievance – whether sentence should be reduced

CRIMINAL LAW – evidence – objection to witness giving evidence – Evidence Act 1995, s 18 – compellability of a parent as a prosecution witness – witness is the mother of the accused – evidence given would affect relationship between mother and son – accused has quadriplegia – witness provided a number of statements to police immediately after killing – statements able to be tendered by Crown – objection upheld

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers – Appointment - Application for appointment of a protected estate manager - Application made in anticipation of personal injury compensation – Protected person without other property - Application adjourned until after resolution of compensation litigation

JURY – the jury in criminal proceedings – request for jury investigation – Jury Act, s 73A – consent of Supreme Court required – consent declined – no power to conduct investigation as no “verdict” – jury unable to reach a verdict – no reasonable basis to suspect jury irregularity

FAMILY LAW - Adoption - Application for declaration of paternity of child - Application for orders dispensing with consent of birth parents - Application for approval of change of middle and last name - Whether name change is in child's best interests

PRACTICE AND PROCEDURE - motion to lead further or fresh evidence

TORTS – negligence – motor vehicle accident – public or other authorities – whether failure to exercise a special statutory power – whether failure to carry out roadwork manifestly unreasonable – whether authority ignorant of risk which materialised – whether ignorance itself manifestly unreasonable – Civil Liability Act 2002 (NSW), s 43A TORTS – negligence – roads authorities – non-feasance – whether council immune from liability in failing to carry out roadwork – whether relevant officers had “actual knowledge” of risk which materialised – Civil Liability Act 2002 (NSW), s 45 TORTS – negligence – causation – absence of road signage – sign indicating narrowness of culvert – sign warning of weight limitations – whether signs would have prevented accident

TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of procedure – whether warnings given were adequate – whether certain risks were “material” EVIDENCE – expert – admissibility under s 79 CIVIL PROCEDURE – application to lead fresh evidence on appeal

COSTS – partial success on appeal – whether costs at first instance and on appeal should follow the event, or whether fractional costs order should be made

CRIMINAL LAW – appeal – conviction – verdicts of guilty and not guilty to different counts – question of inconsistency and unreasonable verdict – issue of unreasonableness must factor in acquittals – appeal allowed in part.

CRIMINAL LAW – murder trial - accused charged with murder of former wife of her partner - two children of deceased to be mentioned during trial - application of s.15A Children (Criminal Proceedings) Act 1987 - s.15A operates to prohibit publication of identity of young children of deceased - self-executing operation of s.15A - boys and mother have distinctive and unusual surnames - identification of deceased mother by name or photograph would serve to identify children

PRACTICE AND PROCEDURE– application for non-lawyer to represent plaintiffs– where first plaintiff has an ailment which prevents him from talking– application granted

PRACTICE AND PROCEDURE – notice of motion – application to vacate hearing dates – where applicant to be unrepresented at hearing to commence next week – hearing dates vacated

PROCEDURE – costs – whether order that unsuccessful defendant pay costs should be varied to take account of success and failure on particular issues – no matter of principle.

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debts

PRACTICE AND PROCEDURE – Local Court – Extent of powers of Local Court – Plaintiff charged with traffic offence – Matter called on for hearing before Magistrate – Plaintiff’s counsel made reference to expert report – Objection raised by prosecutor to any expert evidence being called without notice – Where Magistrate made orders vacating the hearing date and requiring the plaintiff to serve an expert report and requiring the prosecution to serve an expert report in reply – No system of case management in the Local Court applying to proceedings of this nature – No power to make orders requiring a defendant to serve evidence in a criminal proceeding – Orders set aside and matter remitted to the Local Court to be dealt with according to law

ADMINISTRATIVE LAW – statutory appeals from administrative bodies – Civil and Administrative Appeal Panel – approach to be followed by Appeal Panel in determining an internal appeal

TORTS – negligence – liability of statutory authority – where authority notified of child physical and sexual abuse – whether finding that abuse did not continue in period after notification was erroneous – whether duty authority owed appellants in exercise of its statutory powers extended in the circumstances of this case to obligation to report abuse to police – whether failure to notify was a necessary condition of harm suffered by appellants

CRIMINAL LAW – CONVICTION APPEAL – two counts of arson and one count of murder – victim stabbed and found in partially burned house – whether particular evidence in Crown case needed to be proved beyond reasonable doubt – whether Crown case was a “links in a chain” case – trial run on a different basis – applicant bound by the way in which the trial was run – whether directions should have been given that “alibi” evidence had to be negatived beyond reasonable doubt – whether tendency evidence was wrongly admitted – whether admission of tendency evidence gave rise to a miscarriage of justice – whether jury sufficiently directed that even if defence witnesses disbelieved the Crown still bore the onus of proving its case – appeal dismissed. CRIMINAL LAW – SENTENCE APPEAL – Asserted miscarriage of justice arising from the failure on the part of the applicant’s legal representatives to tender a medical report on sentence – No miscarriage of justice established – Asserted errors on the part of the trial judge in assessment of the objective seriousness of the offending – Whether the accused’s treatment of the body of the deceased was an aggravating factor – Concessions properly made by counsel who appeared on sentence – Not open to the applicant to re-agitate the subject matter of those concessions – No error established

CRIMINAL LAW – procedure – Crimes (Sentencing Procedure) Act 1999 s 43 – application to reopen proceedings to correct sentencing error – where Court referred to wrong offence provision, maximum penalty and standard non-parole period when resentencing – error did not result in aggregate sentence imposed contrary to law – application refused

CRIMINAL LAW – appeals – application under r 50C of the Criminal Appeal Rules – scope of r 50C – alleged errors of fact and law – re-agitation not permitted CRIMINAL LAW – appeals – r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) not applicable

CRIMINAL LAW – appeal against conviction – causing grievous bodily harm with intent – joint assault on victim – whether judge erred by not directing jury as to causation – whether verdict unreasonable because evidence incapable of establishing causation – where sole issue at trial was identification (recognition) – no error in failure to direct on matters not at issue in trial – leave to appeal refused

DIRECTIONS – orders that will advance proceedings in efficient and cost effective way – refusal to order discovery in support of “no evidence” ground

SERIOUS VIOLENCE OFFENDER – lengthy period of imprisonment without parole – risk associated with alleged incapacity to deal with life in the community – original offence, murder, while defined as serious violence offence involved no intention to kill or inflict grievous bodily harm – felony murder – interim supervision order granted to enable psychiatric reports and integration into the community – shortest possible time to allow final decision to be made.

PROCEEDS OF CRIME – Applications for exclusion from restraining orders – Applications for forfeiture orders – whether forfeiture applications should be determining before the applications for exclusion from the restraining orders INTERPRETATION – construction of instruments – federal legislation – application of Victorian Court of Appeal authority which contradicts New South Wales Court of Appeal obiter

CIVIL LAW – application for extension of interim supervision order – by consent – orders made in terms of consent orders

DEFAMATION – publication – where online article included links to related articles – whether able to be relied upon as a single publication DEFAMATION – defences – justification – honest opinion – consideration of requirement of reasonableness DEFAMATION – damages – consideration of proper approach to cap on damages for non-economic loss – whether damages aggravated by conduct of trial

PROCEDURE – application to vacate consent orders for specific performance of contract – whether order was made by consent – whether justice would be better served by vacating the order – whether prima facie case for breach of an essential term of contract of sale – whether there was a serious issue to be tried – whether there were other equitable factors to decline vacating the consent orders

CRIMINAL LAW – sentence – contempt of court – threatening a witness – plea of guilty

CONTRACTS – interpretation and construction of commercial contracts – whether defendant is obliged to direct the Escrow Agent to release the Escrow Amount to the plaintiffs EQUITY – equitable set-off – whether defendant’s warranty and indemnity claims give rise to a right of equitable set-off – whether sufficiently connected with, so as to impeach, plaintiffs’ claimed right – whether any right of set-off excluded by necessary implication from terms of contract – whether defendant entitled not to direct the release of the funds

SUCCESSION - FAMILY PROVISION - The Plaintiffs, each a child of the deceased, applied for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is another child of the deceased and a sibling of the Plaintiffs - Deceased left a Will – Legacy of $30,000 given to each Plaintiff in the Will - Whether adequate and proper provision not made in Will of the deceased for each Plaintiff, and if so, the nature and quantum of the provision to be made.

APPEAL – application for extension of time to seek leave to appeal – lengthy delay – absence of satisfactory explanation – lack of merit of proposed appeal – small amount in issue

APPEAL – summary dismissal for want of due despatch – where considerable delay in proceedings due to appellant being involved in other proceedings – whether this delay should be taken into account – where appellant given substantial opportunity to produce a properly pleaded claim – Uniform Civil Procedure Rules 2005 (NSW), r 12.7 PRACTICE AND PROCEDURE – claims for damages – failure to prosecute – claims struck out – whether satisfactory explanation justifying delay – relevance of criminal proceedings – difficulties flowing from incarceration - pleadings struck out – opportunity to replead – whether error in order striking out claims

ADMINISTRATIVE LAW – prisoner involved in litigation – judicial review of decisions affecting conditions of appellant’s incarceration – whether Court has powers to make orders pursuant to the power of the Court to exercise control over its own processes –whether making of orders would constitute interference in prison administration and management PRISONS – judicial review of decisions as to management of prisoner – classification – accommodation alone in cell – access to laptop computer and legal papers – access to large monitor for computer – order sought for medical/psychiatric evaluation

COSTS – costs where proceedings remitted to District Court for retrial – Workplace Injury Management and Workers Compensation Act 1998, s 346

CRIMINAL LAW – Appeal – Sentence – Grievous bodily harm with intent – Assault by applicant upon his partner – Whether sentencing judge took into account the applicant’s prior conviction when assessing the objective seriousness of his offending – Whether sentence manifestly excessive – Brutal attack committed at a time when the applicant was affected by alcohol – No error on the part of the sentencing judge – Sentence not manifestly excessive CRIMINAL LAW – Sentence – Use of sentences imposed in other cases to determine whether a sentence is manifestly excessive – Need to ensure consistency of application of sentencing principles as opposed to numerical equivalence of sentences

ADMINISTRATIVE LAW – judicial review – working with children check clearance – real and appreciable risk

EVIDENCE ON COMMISSION – order for examination of a person sought under s 33 of the Evidence on Commission Act 1995

PROCEDURE – whether proceedings should be adjourned EVIDENCE – admissions – leave to withdraw admissions – whether withdrawal of admission inconsistent with case management principles GUARANTEE AND INDEMNITY – banker and customer – whether bank debited customer’s account in excess of authority – accuracy of ‘Dobbs’ certificate COSTS – whether order for indemnity costs appropriate

CRIMINAL LAW – violence in courtroom – violence between accused in the dock – whether legal argument should be heard in absence of the accused – application by accused to be separated from co-accused – need to ensure physical safety of the accused – need to ensure psychological wellbeing of those in the courtroom – possible alternatives – audio visual E-dock – construction of barrier in existing dock – application by Crown to place Perspex screen in front of dock to separate accused from the courtroom – prejudicial impact – no indication that accused will attempt to leave the dock – escalation of misbehaviour of accused – balancing interests of accused with psychological safety of those in court

CRIMINAL LAW – admissibility of evidence – listening device recording of two accused in police cells after their arrest – lengthy recording – parties agreed on all but four passages of transcript – recorded conversation similar to evidence previously excluded – evidence excluded because police failed to record admissions – whether unfair to use evidence – relevance of evidence to the issue of whether accused had access to firearms – whether danger of unfair prejudice – assessment by accused of strength of police case – “I think we’re fucked” – not an admission or demonstrative of a consciousness of guilt – merely an assessment of the strength of the evidence

CRIMINAL LAW – listening device recording – assessment of relevance and probative value – separate objections calling for separate consideration – rulings made in the course of argument – assessment of danger of unfair prejudice – where evidence would be unfairly prejudicial to another accused – where evidence supportive of expressions allegedly used in earlier conversations – taking over the city – the city could have been ours – whether wishful musings

JUDGMENTS AND ORDERS – amending, varying and setting aside orders – motion to vary orders after judgment delivered – declarations sought as to determinations by Independent Commission Against Corruption – relief not sought at trial or in notice of appeal – variation sought of order as to costs of appeal – Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A) COSTS – notice of motion to vary costs order – reduction sought on basis of success on one issue – no justification for awarding costs on issue basis