Cases and authorities

CRIMINAL LAW – SENTENCE – application for leave to appeal out of time – murder – joint criminal enterprise – reduction of sentence to reflect provocation by deceased – relevance of ill health to sentence – question of quasi-custody on bail – parity – effect of applicant’s incarceration on family members – special circumstances

ADMINISTRATIVE LAW – costs–whether depart from general rule

PRACTICE AND PROCEDURE – civil – application to set aside default judgment – possession of land – mortgage and debt interest – whether judgment entered irregularly – whether defendant was served – whether defendant has an arguable case on the merits

PRACTICE AND PROCEDURE – civil law – summons for summary dismissal of appeal – appeal from member of Civil and Administrative Tribunal – whether the appeal is competent – whether Division decision was internal or external appeal decision – Civil and Administrative Tribunal Act 2013 (NSW), s 83

PROCEDURE – building and construction – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether adjudicator performed statutory task – whether there is a serious question to be tried that justifies the granting of interlocutory relief pending final hearing – balance of convenience

CORPORATIONS – winding up in insolvency under s 459P of the Corporations Act 2001 (Cth) – presumption of insolvency by means of service of statutory demand. PROCEDURE – service – whether service of statutory demand and affidavit effected by post – evidence of solicitor as to office practice – no evidence that practice followed in relation to the particular documents – held service by post not proved.

CRIMINAL LAW – remarks on sentence – offender pleaded guilty to murder – multiple stab wounds to the deceased – offender and deceased both aged 18 years – intention to kill – no prior criminal record – no evidence of mental illness – evidence of remorse – good prospects of rehabilitation

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – decision of a proper officer – referral for further medical assessment – whether proper officer misconstrued s 62(1A) precondition to referral for further assessment on basis of “additional relevant information” – whether jurisdictional error – meaning of “additional relevant information” – whether s 62(1)(a) includes information relating to issues considered in earlier assessment

PROCEDURE – civil – judgments and orders – notice of motion seeking stay pending appeal to the Court of Appeal – whether applicants’ arguments on appeal have any real prospects of success – whether balance of convenience favours the grant of a stay

DEFAMATION – defence of justification – application by plaintiff to have parts of defence struck out – whether particulars taken at their highest capable of establishing truth of imputations – principles relating to the provision of particulars in civil cases PROCEDURE – obligation not to use a discovered document otherwise than for the purposes of the conduct of the proceedings without leave of the court – defamation action arising out of broadcast featuring secretly-recorded meeting between plaintiff, a migration agent and the agent’s client allegedly made with the cooperation of the agent and without the knowledge or consent of the plaintiff or the client – where migration agent also a solicitor – application by plaintiff for leave to provide recording to Legal Services Commission for purpose of investigation of a complaint against the solicitor

SENTENCE – murder – manslaughter – cause grievous bodily harm – wounding – destroy property by fire – pre-planning – total criminality – no remorse – aggregate sentence

ADMINISTRATIVE LAW – judicial review – licensee of hotel with extended trading authorisation applies to surrender ETA – application not notified by Authority to owners of hotel - application approved by Authority – licensee under mistaken belief that surrender was temporary – application to Authority to rescind surrender – whether owners entitled to procedural fairness before surrender accepted – whether acceptance of surrender was a nullity - procedural fairness not denied ADMINISTRATIVE LAW – judicial review - whether licensee’s mistake was analogous to fraud –– whether error in Authority’s refusal to revoke surrender – whether Authority could re-exercise its power to accept surrender – power to revoke under Interpretation Act s 48 - whether provisions of Liquor Act showed contrary intention to operation of s 48 – whether acceptance of surrender could be set aside for having been made on a wrong factual basis – whether wrong factual basis shown – decision not made on wrong factual basis LIQUOR LAW – licensing – extended trading authorisation – surrender by licensee – whether owners entitled to procedural fairness – whether Authority entitled to deal with licensee

WORKERS’ COMPENSATION – medical assessment certificate – appeal to Appeal Panel – Workplace Injury Management and Workers Compensation Act 1998, ss 327, 328 – where Appeal Panel set aside medical assessment certificate of Approved Medical Specialist – where Appeal Panel did not make reference to the correct table in the guides to assessing permanent impairment – whether Appeal Panel’s determination was contrary to law

PROCEDURE – civil – pleadings – application to strike out Defence – where Defence contains unintelligible and irrelevant allegations and fails to plead material facts – whether pleading is embarrassing – whether defendant should be given the opportunity to re-plead

MISLEADING OR DECEPTIVE CONDUCT - partners signed Licence Agreement by which they acquired a licence to conduct a chicken shop business - two partners (claimants) allege a third partner misrepresented the effect of the Licence Agreement - whether the third partner’s statement amounts to the representation alleged by the claimants - whether the third partner’s conduct was misleading or deceptive DAMAGES - assuming the third partner’s conduct was misleading, whether the claimants were entitled to recover the whole of the “licence fee” paid by them - absence of findings to justify recovery of the whole licence fee

TORTS – negligence – motor vehicle accident – collision between two motor vehicles – competing versions of events – primary judge accepted version of events given by respondent and found appellant’s vehicle was on wrong side of road APPEAL – civil – challenge to findings of fact – function of appellate court in relation to fact finding at trial – factual findings of primary judge not based on assessment of credit – appeal by way of rehearing – Supreme Court Act 1970 (NSW), s 75A – no impediment of kind stated in Fox v Percy [2003] HCA 22; 214 CLR 118 – primary judge erred in findings of fact – skid marks – debris – position where vehicles came to rest – more probable than not respondent’s vehicle was on wrong side of road – appeal allowed

CRIMINAL LAW – offences against the person – murder – trial by judge alone – defence of mental illness – accused suffering from severe case of paranoid schizophrenia – accused did not understand wrongfulness of his act – finding of not guilty by reason of mental illness

PROCEDURE – judgments and orders – stay pending outcome of related proceedings in different jurisdiction PROCEDURE – separate questions – whether order should be made

PRACTICE AND PROCEDURE — Pleadings — Application to strike out pleadings — Application for particulars — Circumstance in which Court will entertain objection to pleadings and argument in relation to particulars — Contemporary purposes of pleadings — Material facts upon which the plaintiff relies for its claims for relief not pleaded — Defendants are not in a position to know what case they have to meet — Pleadings struck out with leave to replead

ADMINISTRATIVE LAW – Judicial Review – Asserted errors of law – Where statutory Authority was vested with the responsibility of determining the release of persons on parole – Where first defendant had been sentenced to a term of imprisonment – Where non-parole period had expired – Release on parole recommended – Where Authority determined that first defendant should be released – Asserted errors on the part of the Authority – Ignoring relevant material – Reaching findings of fact which were unsupported by the evidence – Reaching erroneous findings of fact – Necessity to bear in mind that the proceedings were not a merits review – Errors not established – Summons dismissed

COURTS – jurisdiction – trustee in bankruptcy lodged caveat based on interest arising under Bankruptcy Act 1966 (Cth) s 58 – proceedings against trustee in bankruptcy claiming caveat lodged and maintained without reasonable cause dismissed – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed

TORTS – employee injured in motor vehicle accident at work – employee claimed under workers compensation and motor accident legislation – Workers Compensation Commission determined injury to cervical spine caused by accident – Medical Assessor subsequently determined that injury to cervical spine not caused by accident – plaintiff claimed issue estoppel bound the Medical Assessor – whether issue estoppel could exist given motor accident claim was against fellow employee for which employer was vicariously liable – whether motor accidents legislation excluded operation of issue estoppel in relation to causation – whether issue estoppel was a “common law principle” to which the Medical Assessor was subject by reason of the Permanent Impairment Guidelines PRACTICE – requirement to prepare paginated affidavits and appeal books – requirement to formulate grounds of judicial review with precision – requirement to file signed submissions

COSTS – limited success on cross-appeal – cross-appellant obtains larger judgment, but most grounds fail – no order as to costs of cross-appeal

CRIMINAL LAW – sentence appeal – aggravated dangerous driving occasioning grievous bodily harm – offender speeding to escape police pursuit with unrestrained 17 month old baby in front seat of car – collision with tree – baby suffering grievous bodily harm – injuries suffered by offender amounting to extra curial punishment – offender having suffered abuse during childhood – whether sentences imposed manifestly excessive – appeal dismissed.

PRACTICE AND PROCEDURE – criminal appeal – whether leave should be granted to add a further ground of appeal

SENTENCE – Conspiracy to import a commercial quantity of border controlled precursor (ss 11.5(1) with 307.11(1) of the Criminal Code (Cth)) – rolled-up offence involving five importations – applicant a customs officer and as such had responsibilities in detection and prevention of alleged cross-border activity – bribery of a Commonwealth Public Official (s 141.1(3) of the Criminal Code (Cth)) – Official Abuse Office to Gain Advantage (s 142.2(1) of the Criminal Code (Cth)) – parity – differential charging of co-offenders – hierarchy of offenders within charged conspiracy offences – no marked disparity in respect of sentences imposed – whether discount on sentence allowed for co-operation with law enforcement authorities – assessment in sentencing for nature and ongoing severity of imprisonment – protective custody – objective seriousness – sentences imposed not manifestly excessive

CRIMINAL LAW – Crown appeal against sentence – doing an act with intent to pervert the course of justice – participating in the preparation of a false alibi and statement – s 9 bond imposed – whether sentence manifestly inadequate – Crown case consisting mainly of telephone intercepts – respondent an active participant in offence – respondent gave evidence in sentence proceedings – strong subjective case – sentence manifestly inadequate – residual discretion – custodial sentence would seriously interfere with respondent’s rehabilitation – Crown appeal dismissed.

PROCEDURE – whether proceedings should be dismissed – whether statement of claim properly verified – where plaintiff resides in People’s Republic of China and does not have legal representation – whether another natural person has capacity to represent the plaintiff

CORPORATIONS – members’ rights and remedies – inspection of books – whether application made in good faith and for proper purpose – application by 50% shareholder in closely held company – application granted.

SUCCESSION – wills, probate and administration – appointment of administrator of the estate – whether plaintiff should be executor of deceased’s informal will – whether circumstances give rise to granting of probate as a matter of urgency – where grant sought for protection of assets of the estate – whether court can dispense with publication of notice of intention – s 42(2)(b) Probate and Administration Act 1898 (NSW)

APPEAL – Asserted errors of law on the part of members of Tribunal – Errors not established – No point of princple

CRIMINAL LAW – sentence – murder – trial by judge alone – self-induced intoxication – intention to kill – extremely violent offence – discount for utilitarian manner in which trial conducted – moral culpability – mental health considerations

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debt – whether “some other reason” to set aside because purported Corporations Act s 459E(3) affidavit is not an affidavit – PROCEDURE – affidavits – where affidavit called for by s 459E(3) – identification of legislation governing making of such affidavit – where affidavit is in prescribed form but without any signature in “Before me” section – where evidence led as to circumstances of signing – that evidence shows no use of the Bible and no reference to God – whether the document is an affidavit.

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute about existence of debt – CORPORATIONS – statutory indoor management rule – entitlement to make certain assumptions in relation to dealings with company – disentitlement in case of suspicion that assumptions not correct.

CRIMINAL LAW – application for extension of time to seek leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 – application refused

CRIMINAL LAW – appeal – conviction – whether evidence should have been admissible under an exception to Criminal Procedure Act 1986 (NSW) s 293 – meaning of “injury” which is “attributable to the sexual intercourse alleged to have been had by the accused person” – CRIMINAL LAW – appeal – sentencing – whether primary judge fell into Muldrock error – whether sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal – sentencing – delay in entering guilty plea – whether error in calculating utilitarian discount CRIMINAL LAW – appeal – sentencing – mental illness – whether error in failing to provide reasons for rejecting conclusion of psychiatrist – whether failure to consider effect of mental illness on moral culpability – whether failure to consider effect of mental illness on incarceration – whether failure to consider prospects of rehabilitation CRIMINAL LAW – appeal – sentencing – whether manifestly excessive

CRIMINAL LAW – appeal – conviction – detaining without consent with intent to obtain advantage in company, s 86 Crimes Act 1900 (NSW) – whether misdirection regarding content of recklessness – whether inadvertent recklessness satisfies mens rea for the offence of kidnapping

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – orders made for control and secure accommodation of young person when 13 years of age – young person has attained 18 years – order for parental responsibility in favour of Minister, Department of Family and Community Services ceased when young person became 18 – guardianship order made by NSW Civil & Administrative Tribunal in favour of Public Guardian – continuing operation of parens patriae jurisdiction – principles applicable – supervision by court of transition to exercise of guardianship powers by Public Guardian

COSTS – determination of separate question – general rule that costs follow event – whether departure from usual position warranted – whether order for indemnity costs appropriate – whether costs should be ordered to be paid forthwith

PROCEDURE – costs – security for costs – plaintiff ordinarily resident outside Australia – defendants seek security for costs – no matter of principle

CORPORATIONS – claim by Hwang for declarations that Hwang is and remains a director of and shareholder in Ji Woo and for rectification of register – where registration of cessation as shareholder and director irregularly procured – whether Hwang had agreed to relinquish all interests in company – held, he had – declaration refused and Hwang ordered to formally resign and transfer shares CONTRACT – claim by Lee for reimbursement of moneys invested in IBN – whether Hwang had agreed to reimburse moneys invested by Lee in return for transfer of his shares in IBN – whether Lee had agreed to transfer his shares in consideration of releases and had released or assigned any claim to moneys invested – held, Hwang had not agreed to reimburse moneys, and Lee had agreed to assign or release all rights to moneys invested – Lee’s claim dismissed.

REAL PROPERTY – Strata title – Management and control – Whether meeting of Executive Committee invalid because of failure to give notice in compliance with Strata Schemes Management Act 1996 (NSW), Sch 3, cl 6 – Whether Executive Committee lacked authority to instruct counsel to enter into settlement agreement due to subject matter of agreement CONTRACTS – Principal and agent – Authority of agents – Whether counsel for Owners Corporation lacked authority to make settlement agreement on behalf of Owners Corporation – Whether Owners Corporation ratified settlement agreement through conduct and acquiescence PROCEDURE – Judgments and orders – Amending, varying and setting aside orders – Source of power to set aside consent orders WORDS AND PHRASES – “must” – Strata Schemes Management Act 1996 (NSW), Sch 3, cl 6

CONTEMPT OF COURT – ex parte restraining orders issued – subsequent order of Court that “orders remain in force” – whose orders have been breached – does it matter? – inferences to be drawn from application of legal representatives – knowledge and understanding of Contemnor.

TORTS (negligence) – motor vehicle accident – challenge to primary judge’s findings of point of impact of collision – whether driver failed to keep a proper lookout – content of driver’s duty to other road users including pedestrians – whether reasonable care for their safety having regard to all circumstances with which driver is confronted – requirement to exercise high degree of vigilance near other traffic and in vicinity of intersections – whether attention given to different features of the road – causation – expert evidence – whether response time available to driver insufficient to avoid collision with pedestrian – contributory negligence – Civil Liability Act s 5B and 5R – pedestrian’s duty to take reasonable care for own safety – apportionment – challenge to primary judge’s finding – whether error demonstrated – damages – where inaccurate and incomplete history of respondent’s pre-accident symptoms and conditions provided to medical experts – whether adverse credit finding against respondent taken into account – whether error in accepting medical evidence based on inaccurate and incomplete histories – whether new trial for re-assessment of damages should be ordered

CONTRACT – construction of deed of release – appellant (insured) lends money on security of first mortgage – insured makes claim under mortgage indemnity policy issued by the respondent (insurer) – insurer makes payment under the policy – insurer contributes to costs of insured’s action against a valuer – insured recovers damages from valuer in respect of both indemnified and non-indemnified losses – insurer relies on deed of release to claim priority for repayment of the amount paid to insured – whether the deed of release was intended to expand the insurer’s right of subrogation under the policy

RESTRAINT OF TRADE — Interlocutory injunction — Employer seeking to restrain employee taking up employment with competitor — Whether restraint in employment contract began to run when employee placed on gardening leave — Employee being placed on gardening leave did not terminate employment relationship — Restraint period commenced on the termination of both the employment relationship and the contract of employment — Whether restraint valid — Employee to be taken out of the market for six months — Employee holds a senior position having had access to confidential information and trade secrets — Six month restraint not larger than is reasonably necessary to protect employer’s interests in preserving its confidential information — Whether interlocutory injunction should be refused on account of delay in seeking injunction — No obvious prejudice from the delay — Serious question to be tried — Balance of convenience favours employer — Interlocutory injunction granted

CRIMINAL LAW – violent incident in court – public interest in security of court – desirability of full reporting – administration of justice

CIVIL LAW – application for mandatory psychiatric examinations pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether defendant a “high risk violent offender” – whether test made out at preliminary stage

PRACTICE – application for pro bono referral – return of brief by counsel formerly retained – application made informally and without evidence – application refused