Cases and authorities

CRIMINAL LAW - murder trial - shooting of environmental officer on 29 July 2014 - defence objection to particular evidence from ecologist employed by the Office of Environment and Heritage - evidence concerns observations of area of land in September 2014 compared with its state in April 2014 - evidence allowed

COSTS – Offer of Compromise which complied with the rules – no reason given for why Offer of Compromise not accepted – no reason why Court would “order otherwise” – special costs order should be made.

PRACTICE AND PROCEDURE – persistent failure to comply with orders – failure to comply with costs order – no explanation for failure offered - whether defence and cross-claim should be dismissed

EASEMENTS – application to extinguish or vary two rights of carriageway under Conveyancing Act 1919, s 89 – principal proceedings commenced by dominant tenement owner but discontinued due to his bankruptcy – servient tenement owner continues to apply for extinguishment of the two rights of carriageway on his cross claim – construction of the rights of carriageway – whether the rights of carriageway: should be deemed obsolete; or impede the reasonable user of the servient tenement, without securing practical benefit to the dominant tenement – whether the rights of carriageway have been abandoned – whether the extinguishment of the rights of carriageway will not substantially injure the person entitled to them – if rights of carriageway are not extinguished whether the dominant tenement owner is entitled to park vehicles on the right of carriageway.

COSTS – indemnity costs order – unsuccessful plaintiff failed to accept Calderbank offer – whether a genuine offer of compromise – whether unreasonable of plaintiff to not accept offer

CONTRACT – sale of business – vendor entitled to interest on outstanding contract price unless in default – whether vendor in default by allegedly failing to make certain adjustments – CONTRACT – sale of business – vendor obliged to assist purchaser in certain respects – whether breach of contract –whether obligation required unilateral assistance absent request from purchaser – DAMAGES – whether evidence of causation and loss sufficient – PROCEDURE – whether new argument can be raised for first time on appeal

DAMAGES – motor accident – future treatment expenses – past and future assistance – whether primary judge’s assessment erroneous and not supported by evidence – whether evidence supported award of buffer amount for contingencies

CRIMINAL LAW – appeal against sentence – drug supply and firearm offences – supply commercial quantity of methamphetamine – no error in assessment of principal offence as in the mid-range of seriousness – criminality of different offences correctly considered discretely – no error in approach to sentencing regarding drug quantities – leave to appeal refused

CORPORATIONS – winding up – winding up in insolvency – creditor’s statutory demand – application to set aside – whether there is a genuine dispute as to existence of debt

EVIDENCE – admissibility and relevance – hearsay– whether evidence constitutes an admission – where admission involves application of legal standard ADMINISTRATIVE LAW – evidence – proof of jurisdictional error – means of proof - admission

PRACTICE AND PROCEDURE – notice of motion - claim against defendant for professional negligence – no expert’s report pursuant to r 31.36 of the UCPR – unrepresented litigant - proceedings dismissed COSTS – costs to follow the cause – plaintiff does not seek enforcement of costs order – costs order stayed

CRIMINAL LAW – Evidence – Cross-examination – Cross-examination as to character – Whether question put to accused in cross-examination raised the character of the co-accused – Whether re-examination should be permitted allowing accused to express opinion of the character of co-accused – Re-examination not permitted

PROCEDURE — Costs — Order sought for costs on indemnity basis — where Plaintiffs’ sought indemnity costs on basis of unsuccessful Defendant’s rejection of offer of compromise or under Calderbank principles – where Plaintiffs’ offer included an amount as to costs – whether offer of compromise is valid where it included amount as to costs – whether Plaintiffs’ offer warrants indemnity costs under Calderbank principles – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) has consequence that Plaintiffs should not be awarded costs.

MENTAL HEALTH – Legal proceedings by and against mentally ill and other protected persons – Litigant in person – Belated discovery that plaintiff is under subsisting order that his estate be subject to management as a protected person under NSW Trustee and Guardian Act 2009 NSW – Stay of proceedings

REALPROPERTY – possession of land – default under mortgage – defendants initially unrepresented -Defence filed does not disclose defence to claim – Defence struck out – defendants given leave to file further defence

COSTS – Void costs agreement – indemnity principle not applicable – defendant entitled to costs on indemnity basis

CRIMINAL LAW – evidence – application to exclude evidence under s 137 Evidence Act 1995 (NSW) – where photographs of shorts worn by accused Swan show several areas of staining – where only one stain tested for blood or DNA – probative value of evidence of other similar stains in circumstances where possibility of secondary transference raised – whether evidence unfairly prejudicial – evidence of staining admissible – evidence of crime scene officer’s opinion inadmissible

CORPORATIONS — winding up — winding up in insolvency – where Plaintiff filed originating process seeking orders that Company be wound up in insolvency – where Company sought interlocutory relief setting aside originating process on basis that the application had not been duly served by the Plaintiff as required under s 465A(b) of the Corporations Act 2001 (Cth) – where Plaintiff’s solicitors delivered application to Company’s solicitors within the 14 day period specified in s 465A(b) without intending to effect service – where third party creditor purported to serve application on Company – whether service within 14 day period in s 465A(b) of the Corporations Act 2001 (Cth) is a prerequisite to the Court’s jurisdiction to order winding up of company – whether only the applicant for the winding up order can serve the application – whether service was effected under principles of informal service at general law – whether Court should make order confirming service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW).

CORPORATIONS — Winding up — Application to set aside creditor’s statutory demand under ss 459H and 459J of the Corporations Act 2001 (Cth) – where Plaintiff alleged an entire contract where its obligation to pay Defendant depended on at least substantial performance by Defendant – where the creditor’s statutory demand comprised several debts – whether Graywinter principle applies to restrict matters that can be relied upon – whether it was arguable that contract was an entire contract – whether there was genuine dispute as to whether Defendant’s services constituted substantial performance of agreement – whether there is some other reason why demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth).

CRIMINAL ASSETS – proceeds of crime – application for exclusion from forfeiture – onus of proof on applicant to satisfy the Court of elements in s 94(1) of Proceeds of Crime Act 2004 (Cth) in relation to each item of property sought to be excluded – concession made by applicant that some items of property funded by proceeds of illegal activity – applicant’s onus not discharged in relation to any item of property – application dismissed

PROCEDURE – application for correction to earlier reasons pursuant to UCPR r 36.17 – rule does not apply – discretion by the Court to withdraw reasons for the purpose of correction – correction of earlier reasons

CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offence – public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion – conditions to minimise prejudice to accused person

APPEAL AND NEW TRIAL – grounds of appeal – whether formulated with sufficient specificity – grounds of appeal – whether appellant should be allowed to add grounds that judgment below procured by fraud – where fraud not admitted – whether new evidence upon which appellant would seek to rely is incontrovertible – held not appropriate for question of fraud to be tried by appellate court

CRIMINAL LAW – sentence appeal – murder – sentence of 28 years with a non-parole period of 21 years – whether sentencing judge erred in imposing a non-parole period which was greater than the standard non-parole period in circumstances where he had assessed the offence at the midrange of seriousness – whether sentencing judge was required to provide reasons for departing from the standard non-parole period and if so, what reasons were required – leave to appeal against sentence refused.

CRIMINAL LAW – appeal – conviction – evidence – verdict unreasonable or unsupportable on evidence – where appellant convicted of recklessly inflicting grievous bodily harm in company – s 35(1) Crimes Act 1900 (NSW) – whether injuries suffered by victim amounted to “grievous bodily harm” – whether Court should enter substituted verdict for assault occasioning actual bodily harm in company WORDS AND PHRASES – “grievous bodily harm”, “actual bodily harm”

JURISDICTION – application for leave to appeal under Criminal Appeal Act 1912 (NSW), s5F(3)(a) – pre-trial ruling concerning defence of superior orders – whether ruling an “interlocutory judgment or order” under s 5F(3)(a) – ruling concerned admissibility of evidence – ruling given in advance and concerned matters affecting conduct of trial – ruling not an interlocutory judgment or order under s 5F(3)(a) – leave refused for want of jurisdiction CRIMINAL LAW – appeal – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – whether defence of superior orders available

CRIMINAL LAW – Crown appeal against sentence – aggravated dangerous driving causing grievous bodily harm – finding of special circumstances by sentencing judge – substantial reduction in non-parole period - whether the non-parole period is manifestly inadequate – principles applicable to a Crown appeal – residual discretion – proximity of release date

CRIMINAL LAW - murder trial - shooting of environmental officer - Crown application under s.38 Evidence Act 1995 to cross-examine Crown witness on specified topics - witness a farm worker employed by Accused’s family - leave granted

CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to evidence of land valuation of relevant properties at different times - evidence of increased value of land if converted from timbered grazing properties to broadacre farms - evidence allowed

CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to evidence of observations of activities after date of alleged offence - evidence not allowed

CRIMINAL LAW - murder trial - shooting of environmental officer - defence objection to Crown calling witness - witness a Commonwealth officer who spoke to Accused concerning impact of land clearing on fauna conservation - comment by Accused said to indicate attitude to regulatory scrutiny and action concerning land clearing - evidence allowed

CRIMINAL LAW – high risk offender – interim detention order – where sentence to be spent prior to hearing of continuing detention order application – where no accommodation available despite efforts to date – where good prospects of securing accommodation prior to hearing date

ENCROACHMENT OF BUILDINGS – Compensation - basis

CONTRACT – Common mistake – Scope – Whether equity has a role – Solle v Butcher and Great Peace Shipping case discussion

CRIMINAL LAW – application for discharge of jury – where counsel for co-accused elicits potentially prejudicial evidence – “stand over bloke” – “got out of gaol” – where counsel misapprehended interview – failure to object to evidence not relevant to discharge application – potential for prejudice – no clear identification of accused – minor incident in a lengthy trial – potential prejudice cured by direction

FORFEITURE ACT – Not guilty of murder by reason of mental illness – whether forfeiture rule should apply

LANDLORD AND TENANT – for stay of eviction order made by New South Wales Civil and Administrative Tribunal – stay granted ex parte – application by lessors to lift stay – false evidence presented on ex parte application – stay lifted – referral to Prothonotary to investigate contempt proceedings

CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving three complainants – whether error in ordering separate trials in respect of each complainant – whether error in primary judge finding a real chance or possibility of concoction or contamination in relation to the evidence of the complainants and tendency witnesses – approach to assessing probative value in s 97 Evidence Act – approach to the balancing exercise in s 101(2) of Evidence Act – appeal by Crown under s 5F allowed – six counts on indictment to be heard together – Crown to be at liberty to adduce tendency evidence.

EQUITY: Practice and Procedure- application to transfer proceedings from District Court to Supreme Court- Claim of ‘connected’ matter, with separate proceedings by solicitor (defendant in District Court proceedings) against former partner and for all District Court matters to be heard together and leave for applicant to cross claim against former client. Overlap insufficient to justify disadvantaging plaintiffs in District Court proceedings, application refused. EQUITY: Alleged breach of deed, breach of obligations of confidentiality and non-disparagement clause.

EVIDENCE – evidence on commission - s 33 Evidence on Commission Act 1995 (NSW) – request from Polish Court – Subpoena to Attend to Give Evidence

PRACTICE AND PROCEDURE – possession of land – no evidence filed in support of defence – defence struck out - no appearance for defence - liberty to apply for default judgment

JUDGMENTS AND ORDERS – matters arising from earlier judgments; COSTS – where plaintiff only successful in relation to one issue – whether Sanderson order should be made concerning costs of the fourth defendant

GUARDIANSHIP – Protected person – Financial Management – Injunction in aid of management of protected estate by interstate manager

CRIMINAL LAW – interview with child victim – vulnerable witness – evidence of injury and emotional impact of shooting on witness – hearsay – evidence of what child was told by doctors – evidence not admissible – evidence of impact of injuries – probative value – whether answer in the nature of a victim’s impact statement – where no dispute as to element of grievous bodily harm – where no clear indication of formal admissions – evidence admissible

CRIMINAL LAW – evidence – objection to tender of firearms – probative value – guns used in shootings subject to the charges – no evidence of any danger to the jury – submission that jury might use the guns as “toys” rejected CRIMINAL LAW – evidence – charts summarising ballistics evidence – where no ballistics link between bullets and weapon – potential to mislead – purpose of s 50 Evidence Act 1995 (NSW)– two separate charts admissible – single charge not admissible

PROCEDURE — costs — order sought for costs on indemnity basis by second defendant – where offer of compromise not accepted by unsuccessful plaintiffs – whether offer allowed reasonable time for acceptance – whether in circumstances Court ought “otherwise order” – order made

CRIMINAL LAW – appeal against conviction – judge-alone trial – robbery with wounding – approach to conviction appeal from judge-alone trial – alleged error in assessment of credibility and reliability of Crown witness – alleged unfairness in findings made concerning Crown witness – errors not demonstrated – whether verdict unreasonable or not supported by the evidence – Crown case dependent upon truthfulness of initial interviews of Crown witness in which he implicated the Applicant (his brother) in the crime – Crown witness retracted this account at trial – leave to cross-examine under s.38 Evidence Act 1995 – trial judge satisfied beyond reasonable doubt that initial accounts implicating the Applicant were true – verdict of guilty was reasonably open – appeal dismissed

CRIMINAL LAW – appeal against conviction – drug supply – whether verdict unreasonable or unsupported by the evidence – where principal Crown witness is a co-offender – where there is no forensic evidence inculpating the applicant – a strong circumstantial case and objective evidence supports critical aspects of witness evidence – appeal dismissed

CRIMINAL LAW – appeal – sentencing – parity between co-offenders – where applicant and co-offender sentenced for possessing a commercial quantity of an unlawfully imported border control drug – where co-offender’s role in the commission of the offence was greater than the applicant’s – where the sentencing Judge imposed a lesser sentence on the applicant – whether the sentencing Judge gave proper consideration to the circumstances of the applicant and co-offender and their different degrees of criminality – whether the sentencing Judge failed properly to exercise the discretion reposed in her

CRIMINAL LAW – appeal against sentence – supply commercial quantity of prohibited drug and other offences – aggregate sentence – whether judge erred in assessment of objective seriousness – principle of totality – whether judge erred in failing to take account of the principle – parity – whether justifiable sense of grievance – whether judge placed undue weight on protection of community and offences alleged to have been committed in custody – whether sentence manifestly excessive