Cases and authorities

ADMINISTRATIVE LAW – judicial review – assessment of damages – whether reasons revealed jurisdictional errors and errors in law as to assessment of damages – adequate reasons not given – orders sought made – decision set aside – matter remitted – costs

PRACTICE & PROCEDURE – medical negligence – conclave of medical experts – where in excess of 20 medical specialists – whether the concurrent evidence of the experts should be given in groups of specialists or one concurrent session of all experts – whether leave should be granted to tender the report of an expert who was unable to attend the causation conclave and to call him to give evidence – whether leave should be granted to adduce evidence from an expert on the plaintiff’s signs and symptoms

CRIMINAL LAW – sentence – murder – shooting of environmental officer – multiple shots and wounds – offence committed against public official whilst exercising public functions – offences committed whilst criminal proceedings against Offender before Land and Environment Court for offences under the Native Vegetation Act 2003 – history of investigation by Office of Environment and Heritage – intention to kill – offender 79 years old at the time of the offences – partial defence of substantial impairment rejected by jury – mental condition of Offender at time of offences – offender suffering from adjustment disorder but not a serious mental disorder – offences of substantial objective gravity – importance of general deterrence – relevance of age and health on sentence – need for sentences to reflect objective seriousness of offences. CRIMINAL LAW – sentence – detain for advantage – detain environmental officer for the purpose of killing another environmental officer – offence committed against public official whilst exercising public functions – history of investigation by Office of Environment and Heritage – victim detained for a protracted period whilst he undertook the shooting of his colleague – plea of guilty – importance of general deterrence – high objective seriousness – accumulation and concurrency – aggregate sentence

CRIMINAL LAW - murder trial - reasons for trial rulings - admissibility of post-arrest telephone conversations involving Accused - whether Crown should be permitted to call forensic psychiatrist in reply on issue of substantial impairment - whether partial defence of extreme provocation should be left to the jury

ADMINISTRATIVE LAW – Domestic tribunal – Disciplinary hearing – Not a merits review – Rules of evidence inapplicable – Meaning of “unbecoming” –Whether irrelevant considerations introduced – Whether redactions led to procedural unfairness – Extent of tribunal’s discretion – Meaning of “present” evidence – Wednesbury unreasonableness

COSTS - assessment of costs - gross sum costs order - whether appropriate

PROCEDURE - setting aside notice to produce EVIDENCE - client legal privilege - implied waiver - Evidence Act 1995 (NSW) s 122

LOCAL GOVERNMENT – enforcement of orders – Local Government Act 1993 (NSW) s 124 – Environmental Planning and Assessment Act 1979 (NSW) s 121B – whether orders invalid – whether orders served – whether denial of procedural fairness PROCEDURE – adjournment application – Legal Aid Commission Act 1979 (NSW) s 57 – where parties seeking adjournment did not appear – whether primary judge erred in refusing adjournment application – whether bona fide appeal or intention to appeal refusal of legal aid SERVICE – service of originating process – whether service effected PROCEDURE – affidavit – whether affidavit valid despite irregularities in form – Uniform Civil Procedure Rules 2005 (NSW) rr 35.1, 35.7B – power of court to deal with procedural irregularities – Civil Procedure Act 2005 (NSW) s 63 EVIDENCE – ability to attend court – probative weight of heavily redacted medical certificates

CRIMINAL LAW – appeal – application for leave – discharge of jury by trial judge – jury unable to agree as to one accused – jury not invited to consider charges against applicants – whether decision to discharge erroneous – whether relief available after discharge took effect and jury released – s 5G Criminal Appeal Act 1912 (NSW) JURIES – discharge before judge summed up charges against accused – refusal to stay decision to discharge – whether decision to discharge erroneous – whether stay of decision effective to protect against prejudice

CRIMINAL LAW – appeal against sentence – historical child sexual assault – whether fresh evidence of Alzheimer’s diagnosis shows that a miscarriage of justice occurred in the sentence proceedings – where condition was present but undiagnosed at time of sentence – where sentencing judge had found incarceration would be more difficult than usual – ill-health and advanced age already had a major influence on lenient sentence – evidence could but should not be received by the Court – evidence insufficient to warrant a fresh assessment of sentence – leave to appeal refused

CRIMINAL LAW – appeal against sentence – wound with intent to cause grievous bodily harm – no error in assessment of objective seriousness – provocative conduct appropriately taken into account – obvious “slip” referring to death of victim did not affect assessment – no error in finding moral culpability not significantly diminished due to applicant’s background – no error in finding no significant diminution for requirements of general and specific deterrence or denunciation – applicant appreciated gravity and consequences of conduct – sentence not manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal against conviction – trial before judge sitting without a jury – two counts of knowingly taking part in manufacture of prohibited drug – appellant leased premises and participated in manufacture of precursors and prohibited drugs – appellant accepted that he was involved in the manufacture of a precursor – in one count, the precursor was also a prohibited drug – whether trial judge erred in formulating mental element of offence – whether trial judge failed to provide adequate reasons for finding that appellant was aware of the actual substance being manufactured – whether verdicts unreasonable or could not be supported by the evidence – Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

CRIMINAL LAW – admissibility of complaint evidence

CRIMINAL LAW – EVIDENCE – Crown application to cross-examine witness pursuant to s 38 of the Evidence Act 1995 (NSW) – prior inconsistent statement made in evidence on the voir dire – consideration of factors in s 192 of the Evidence Act 1995 (NSW) – application relevant to leave granted

CRIMINAL LAW – EVIDENCE – clarification of whether evidence is based on hearsay or direct observation on the voir dire – evidence relevant pursuant to s 55 of the Evidence Act 1995 (NSW) – no prejudice to accused – evidence admitted

PRACTICE AND PROCEDURE – interlocutory issues – protection against revelation of culpable conduct – affidavits sworn by defendants said to contain incriminating material – whether notice to produce is an order for production – party serving notice to produce then seeking order that such affidavits be made available or that defendants serve affidavits dealing with circumstances in which alleged culpable conduct occurred – defendants initially not opposing, but then opposing such orders – defendants willing to give evidence of their culpable conduct but only under cover of a certificate – whether defendants actually compelled to give such evidence – whether appropriate to grant certificate in those circumstances

CORPORATIONS – dissolution – striking off of defunct company – reinstatement – where company struck off under (NSW) Companies Act 1961 – no jurisdiction under (CTH) Corporations Act 2001 – whether jurisdiction available under (NSW) Companies Act 1961 – where Act repealed in 2008 – held, jurisdiction no longer available – whether revesting order required where dissolution declared void – held, not required

FAMILY LAW AND CHILD WELFARE – Care and Protection – plaintiffs seek declaratory and injunctive relief in the form of 22 prayers for relief against the Secretary of the Department of Family and Community Services – plaintiffs challenge the validity of decisions made and powers exercised by Departmental officers under Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) – whether the decision to assume and the manner of assuming the three older children into care on 24 June 2014 was invalid – whether the application for and the making of an ECPO regarding the children in the Children's Court on 1 July 2014 was invalid or otherwise beyond power under Care Act - whether the placement of a 'High Risk Birth Alert' at the local District Hospital on 26 August 2014 in regard to the birth of the child was beyond the powers conferred on the Secretary and the Department under the Care Act - whether Departmental officers placing 'risk of violence alerts' on Departmental files concerning the plaintiffs was within power and otherwise justified in the circumstances - whether the joinder of the defendant as an intervener in the Family Court proceedings was invalid or beyond power - whether statements made by the defendant about the status of the children as being 'in care' or removed and regarding the character of the plaintiffs as being either a criminal or having 'mental health issues' were misleading and should be withdrawn or removed from Departmental files - whether the various remedies the plaintiffs seek, including compensatory damages, are legally available and if so whether they should or should not be granted.

PRACTICE AND PROCEDURE – civil – application for assistance in obtaining evidence for proceedings in other court – Evidence on Commission Act 1995, s 32

PRACTICE AND PROCEDURE – civil – application for forfeiture orders – Proceeds of Crime Act 2002 (Cth), s 49

PRACTICE AND PROCEDURE – costs – security for costs – where plaintiff ordinarily resident in China – where plaintiff has few assets in Australia – no evidence as to costs likely to be incurred by defendant – application dismissed

PROCEDURE – review of a Registrar’s order – Interrogatories – proceedings for personal injury – whether interrogatories relevant based on the pleadings - whether special reasons shown – whether interrogatories necessary – request for further particulars

[DEEDS] - where construction contract between two parties - where performance of one party to construction contract guaranteed by third party - where the three parties execute a Deed of variation and release at same time as settling proceedings between two of those parties to which the guarantor was not a party - construction of the Deed - meaning of the expression “the parties” - separate question as to whether guarantor released from obligation to guarantee certain obligations of the party not released under the Deed

PRACTICE AND PROCEDURE – joinder application – plaintiffs bring application for joinder of third party and for leave to amend statement of claim to make claim against third party – plaintiffs assert that if their claim against the defendant fails they will be entitled to succeed in the alternative against third party – plaintiffs assert they only became aware of alternative claim by reason of assertions made in recent affidavit of defendant – whether there is sufficient factual overlap between the claim against the defendant in the statement of claim and the proposed claim against the third party to justify the making of the orders sought so that the two claims will be heard in the same proceeding – HELD current lack of specificity in the identification of the factual overlap between the two claims precludes orders sought being made at this time – invitation to plaintiffs to provide further and better particulars or evidence to make good their assertion that the degree of factual overlap between the two claims warrants them being determined in the one proceeding – no issue of principle

ADMINISTRATIVE LAW – judicial review – Independent Commission Against Corruption – findings of “corrupt conduct” – failure to disclose material facts – whether conduct could “adversely affect” exercise of official functions by a public official – Ministerial discretion in granting of a mining lease – causal connection to exercise of function – whether non-disclosure justified where information could reach the public domain through alternative means ADMINISTRATIVE LAW – judicial review – jurisdiction of Commission – whether the power conferred by statute to make findings and form opinions extended beyond the question of “corrupt conduct” – whether power extended to making recommendations – whether recommendations amenable to review CORPORATIONS – director’s duties – fiduciary duty – duty to act in good faith in the best interests of the company and for proper purpose – whether affirmative duty to disclose information – whether removing oneself from position of conflict sufficient to fulfil duty CRMINAL LAW – whether failure to disclose material facts amounts to deception – whether failure to disclose material facts amounts to fraud, Crimes Act 1900 (NSW), ss 192B, 192E; Corporations Act 2001 (Cth), s 184(1) CRIMINAL LAW – dishonestly obtaining a financial advantage – whether obviating or deferring a financial risk constitutes obtaining a financial advantage – Crimes Act 1900 (NSW), ss 192B, 192D, 192E ENVIRONMENT AND PLANNING – mining lease grant – Ministerial discretion in granting mining lease – relevant considerations – public interest – whether relevant considerations limited to environmental assessment questions – whether considerations of “public interest” limited to environmental and planning matters – Environmental Planning and Assessment Act 1979 (NSW), Part 3A (now repealed); Environmental Planning and Assessment Regulation 2000 (NSW), cl 8B(b) PROCEDURAL FAIRNESS - investigative function of Commission – finding of criminal conduct – whether failure to cross-examine on elements of offences was procedurally fair WORDS AND PHRASES – “intentionally dishonest”, Corporations Act 2001 (Cth) s184(1)

COSTS – offer of compromise – where offer to settle for amount also required releases and non-disparagement promises – whether Calderbank offer – whether reasonable to reject offer PRACTICE AND PROCEDURE – pre-judgment interest – whether offer of compromise ‘appropriate settlement sum’ for purpose of Civil Procedure Act 2005 (NSW), s 100(5) – whether special circumstances under s 100(4) to warrant making of order for pre-judgment interest for period after offer

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of decision to refer claim for assessment and of certificates of medical assessors – whether existence of genuine dispute under Motor Accidents Compensation Act 1999 (NSW), s 60 a jurisdictional fact – whether “attendant care services” for which compensation available includes gratuitous domestic services

ADMINISTRATIVE LAW – judicial review – application for gratuity under Police Regulation (Superannuation) Act 1906 (NSW), s 12D – whether trial judge addressed the wrong question in seeking to identify the pathological consequences of injury – whether identification of “injury to which the claim relates” a question of fact or question of law – whether impermissible application by judge of own medical knowledge amounting to denial of procedural fairness

CRIMINAL LAW – expert evidence – leave to admit expert report into evidence - where report not served within time – where interests of justice require it to be admitted – where no subsequent prejudice to the Crown

EVIDENCE - Evidence on Commission Act 1995 (NSW) - request from Argentinian Court - ex-parte application - orders made

HIGH RISK OFFENDER – notice of motion – application for renewal of interim supervision order – orders made

TORTS – negligence – medical negligence – cross-claim – roles of surgeon and hospital staff – nature of duties owed to patient – Hospital’s breach of duty of care admitted – Jones v Dunkel inferences – hospital systems not adhered to – nature of hospital’s breaches– whether breaches contributed to patient’s death – apportionment of contribution as between Hospital and surgeon – orders – costs

SETTLEMENT - whether reached – application of the principles in Masters v Cameron

PRACTICE AND PROCEDURE – civil – Notice of Motion seeking order restraining respondents from taking steps to enforce costs order – Civil Procedure Act 2005, s 135 – where enforcement steps to be taken under the Bankruptcy Act 1966 – whether Court has power to make the restraining order – whether applicant has arguable case in prospective proceedings against the respondents – whether applicant would suffer prejudice if restraining order not made – whether the balance of convenience favours making the restraining order

PROCEDURE – civil – application to inspect property with photographer – whether necessary for proper determination of any matter in issue PROCEDURE – civil – application to set aside subpoena – subpoena sought family photographs from 1987 to date for purpose of assessing interaction between family members – time period too broad

ADMINISTRATIVE LAW – judicial review – Local Court makes interim and final apprehended personal violence orders – applicant convicted of breach of interim order – unsuccessful appeal to District from making of final order and from conviction – judicial review of District Court decision – decision unaffected by jurisdictional error – futility of challenge to making of interim order in light of the dismissal of the appeal against conviction – separate appeal to District Court from making of interim order – appeal dismissed summarily because interim order ceased to be in force – judicial review of District Court decision – jurisdictional error established, but no relief given, because appeal would inevitably have been dismissed

NEGLIGENCE – slip and fall – plaintiff fell while unloading building materials supplied to subcontractor at construction site – plaintiff claimed he was directed to unload at a place other than loading dock – substantial dispute at trial as to primary facts – trial judge accepted plaintiff’s account, and ordered large judgment in his favour – whether error in findings of primary fact – whether error in formulation of duty – whether error in application of Civil Liability Act 2002 (NSW), s 5B – whether error in finding causation – whether error in finding of contributory negligence and apportionment of liability between subcontractor and employer – whether error in calculation of damages

CRIMINAL LAW – appeal against sentence for supply of a prohibited drug – Drug (Misuse and Trafficking) Act 1985 s 25(1) – where offence committed while on conditional liberty – where sentence partially accumulated on balance of the parole period – whether sentencing Judge regarded the applicant’s commission of the offence while on parole as an aggravating factor – whether sentencing Judge erroneously ‘double counted’ the fact that the offence was committed while on parole

CRIMINAL LAW – sentencing – cause grievous bodily harm reckless as to the infliction of actual bodily harm – offence involving infliction of severe head injury – intoxication of applicant - asserted error in fact finding – whether agreed facts supported factual conclusion beyond reasonable doubt – question of whether adequate recognition given to pre-sentence custody – argument as to significance of time spent in adult gaol - argument raised for the first time on appeal – use of sentencing statistics - question of manifestly excessive sentence

CRIMINAL LAW – appeal against sentence – knowingly take part in the supply of a prohibited drug – question of objective gravity of offence – asserted error in fact finding at sentence following trial – question of applicant’s knowledge of quantity of prohibited drug – question of his role compared to that of a co-offender

CORPORATIONS — Winding up — Application by creditor for substitution as applicant in winding up proceedings against the defendant company – where creditor that commenced winding up application against company was not proceeding with its application – where company opposed substitution application on the basis that the applicant had refused tender of cheque for payment of the company’s debt by a secured creditor of the company – whether applicant acted unreasonably in refusing tender of the cheque in circumstances where the payment might later be set aside as an unfair preference – whether substitution order should be made under s 465B of the Corporations Act 2001 (Cth).

NOTICE OF MOTION – application for money paid into court by consent be paid out to successful defendant – whether a stay should be ordered pending outcome of an appeal – where defendant is a liquid company with significant assets

SUCCESSION - FAMILY PROVISION - The Plaintiff, the adopted son of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendants are executors appointed under the Will to whom Probate granted - Provision for the Plaintiff made in the Will – Estate not small - Only one competing financial claimant although three beneficiaries, other than Plaintiff, named in the Will – Conduct of the Plaintiff towards the deceased for some years prior to death involving physical and verbal assaults and breaches of AVOs obtained by the deceased against him - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.

PROCEDURE – notice of motion – leave sought to discontinue proceedings – leave not opposed and costs order sought on usual basis – parties later informed that no agreement reached and motion not to be pressed – costs thrown away order sought on an indemnity basis – orders made

COSTS – rectification ordered but not in form sought by plaintiff – defendants neither consented to nor opposed rectification – defendants nonetheless chose to appear by counsel, adduce evidence and make submissions – not a case where plaintiff triumphed over opposition of defendants – extent of involvement by defendants a matter of choice – appropriate that each party bear its own costs.

POSSESSION – where receivers appointed – proposed cross-claim alleging unconscionable conduct on the part of the lender – application for interlocutory injunction to restrain receiver from acting – whether serious question to be tried for relief under the ASIC Act – egg farm – need to replace spent birds – whether egg farmer placed in position of special disadvantage by combination of circumstances – evidence suggesting extraneous motive for imposing additional conditions on the loan so as to get borrower “off the books” – balance of convenience favouring existing arrangements pending final hearing

APPEAL - issues of mixed law and fact - appeal from findings of Local Court pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) - real estate agent entitlement to commission where the sale of property did not complete – mixed grounds of errors of fact and law – question of leave

CRIMINAL LAW – murder – trial by judge alone – whether accused guilty or not guilty – self-induced intoxication - whether mental element proved beyond reasonable doubt

PROPERTY – proceedings for possession – application by husband of mortgagor for stay of execution of writ – where proceedings settled at mediation on terms that mortgagor would consent to possession if payment not made by nominated date – where husband undertook at the mediation not to make any claim to any interest in the property – husband subsequently making claim to an interest in the property – whether stay should be granted pending determination of that claim

PROCEDURE – prisoners – leave sought to commence proceedings under the Felons (Civil Proceedings) Act 1981 (NSW) – scheme of Felons Act – whether proposed claims are not an abuse of process and that there is a prima facie ground for the proceedings – orders made PROCEDURE – application for an adjournment – refused – reasons PROCEDURE - pro bono application - application for referral to pro bono legal panel – not granted – reasons