Cases and authorities

CRIMINAL LAW – self-incrimination – certificate that evidence cannot be used against witness – no question of principle.

BUILDING AND CONSTRUCTION – HOME BUILDING ACT 1989 (NSW) – s 3(1), s 3A, s 18B, s 18C, s 18D, s 92, s 92B, s 92C, s 99 – availability of statutory warranties to mortgagee in possession – meaning of successor in title – meaning of non-contracting owner – whether mortgagee in possession is a developer in relation to residential work previously done – availability of home warranty insurance cover.

PROCEDURE – application to strike out Statement of Claim as against 12th to 24th, 27th and 28th defendants – application by plaintiffs to amend Statement of Claim - leave granted for proceedings to be discontinued as against defendants in liquidation, namely 13th to 16th, 18th, 20th, 23rd and 24th defendants – whether Statement of Claim discloses a reasonable cause of action or constitutes an abuse of process - whether leave to re-plead should be given.

PROCEDURE – judgments and orders – undertakings – enforcement – where first respondent has undertaken to indemnify applicants in respect of loss caused by breach of earlier undertaking – where second respondent provided security in support of such indemnity – whether loss caused by breach of earlier undertaking – construction of undertaking

CONTRACT – construction – meaning of “to broadcast” in a Programming Supply Agreement – whether by internet live streaming the plaintiff is broadcasting on and in the licence areas covered by the WIN Stations – implied terms – whether there is to be implied in the agreement a term that the defendant will not internet live stream into the plaintiff’s licence areas – plaintiff seeks a final injunction restraining defendant from internet live streaming into the plaintiff’s licence areas – HELD: internet live streaming is not broadcasting within the meaning of the Programming Supply Agreement

REAL PROPERTY - Farm Debt Mediation Act 1994 – whether debt was a farm debt incurred by a farmer for the purpose of a farming operation – whether enforcement action void - absence of evidence – the rule in Browne and Dunn COSTS – indemnity costs – liability of legal practitioner for unnecessary costs - costs awarded on an ordinary basis

CRIMINAL LAW – Sentencing – Manslaughter – offender charged with murder, pleaded guilty to manslaughter – acquitted of murder – deceased particularly vulnerable because of pre-existing health issues – further offence of assault occasioning actual bodily harm arising out of same series of events – offender has long criminal record, but nothing major over recent years

REAL PROPERTY – contracts for the sale of land – deposits – purchaser required to make two payments of ten per cent of purchase price as deposits – essential condition – purchaser fails to make second payment – vendor terminates contract and forfeits the first payment – whether condition a penalty – whether termination a wrongful repudiation – whether deposit should be repaid to purchaser

CRIMINAL LAW – application for discharge of jury by four of five accused – publication of newspaper article concerning alleged victim of shooting incident – where article followed a television program in which victim and his mother were interviewed – both interviewees witnesses in current trial – where article unrelated to current proceedings – where article failed to distinguish between chapters of Brothers for Life – presentation of alleged victim – uninspiring performance – self-aggrandising gangster figure – buffoon – conduct of jury demonstrates obedience to directions – repeated directions to decide case on the evidence – no real risk that jury will be influenced – appropriate directions – application refused.

PRACTICE AND PROCEDURE – civil – Summons seeking to appeal judgments of the Local Court – where Local Court entered default judgment and subsequently refused to set the default judgment aside – whether any of the Local Court judgments disclosed an error of law

CRIMINAL LAW – Crown appeal against sentence – aggravated dangerous driving occasioning death – two counts – Crimes Act 1900 s 52A(2) – whether sentence manifestly inadequate – guilty pleas – further offence of failure to stop and assist taken into account – high objective seriousness and moral culpability – general deterrence of particular importance – favourable subjective circumstances – consideration of comparable cases and statistics confirms sentence within range – appeal dismissed

SUCCESSION – family provision and maintenance – application by de facto spouse of short but on-going relationship – where relationship was relatively short but plainly committed to a shared future – dependency for accommodation and financial and material support – significant changes made in plaintiff’s position in reliance upon relationship – testamentary intentions of the deceased in will of limited significance where there are supervening changes of circumstances

ADMINISTRATIVE LAW – judicial review – interlocutory decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales in guardianship matter – issue concerning legal representation of first defendant - s 69 of the Supreme Court Act 1970 (NSW) – r 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) – ss 45 and 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) - Cl 14(1)(a) of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) – Further Amended Summons dismissed

CRIMINAL LAW – proceeds of crime – restraining orders

EQUITY – application by plaintiff wife to set aside guarantee signed in favour of defendant bank - application by defendant bank to strike out Statement of Claim – plaintiff wife signed guarantee of a company controlled by her husband in favour of defendant bank to provide credit facility to husband’s company – plaintiff wife signed extensions to the guarantee on four subsequent occasions – plaintiff wife claims that she was unaware of poor financial circumstances of the company or the rate of interest accrual on the company’s obligations to the Bank- in prior recovery action by the Bank the plaintiff and plaintiff's husband jointly advised by solicitor, allegedly giving rise to potential situation of conflict of interest – whether Bank aware of alleged conflict of interest - whether plaintiff’s pleading discloses proper cause of action or is bound to fail. PROCEDURE – avoidance of multiplicity of proceedings – plaintiff asked whether the plaintiff intends to maintain any action against the solicitor who jointly advised the plaintiff and her husband in earlier proceedings and subsequent settlement, for alleged failure to act upon an unresolved conflict of interest - whether any such cause of action against solicitor should be joined to current proceedings in accordance with Civil Procedure Act s 56.

PRODEDURE - Costs - Departing from the general rule – notice of motion - claim for exemplary damages – order cannot be made – gross costs order made

PROCEDURE – notice of motion – claim under the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW) – insurer seeking proceedings against it be dismissed – Rule 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) – whether there is reasonable cause of action – proceedings cannot be dismissed – pleadings to be amended – costs

CRIMINAL LAW – high risk sex offender – primary judge made continuing detention order – whether primary judge erred in failing to determine whether adequate supervision provided by extended supervision order – whether primary judge erred in failing to have regard to report prepared by Corrective Services – Crimes (High Risk Offenders) Act 2006 (NSW), ss 5D and 17(4) – appeal allowed, matter remitted and interim supervision order imposed

CRIMINAL LAW – appeal against conviction – murder – written directions to jury – “question trail” – whether reversal of onus of proof – whether questions correctly formulated issues for jury – relationship between written and oral directions to jury – whether departure from formulation of “beyond reasonable doubt” – whether error in trial judge’s unreliability direction – where no objection taken at trial – whether proviso applicable

CONTRACTS – commercial lease – lessee liable to pay outgoings – provision in lease for lessor to estimate outgoings and for lessee to make payments on account of its obligation to pay outgoings in accordance with that estimate - whether lessor made estimate of outgoings for current year – whether lessee obliged to make payments on account of outgoings in accordance with that estimate

PROTECTIVE JURISDICTION - Incapacity for self-management – Management of protected estate – Variation and appointment of family members as managers GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction - Protected person exposed to exploitation via proposal for marriage overseas - Orders facilitating placement of protected person’s name on watchlist at points of arrival and departure of Australia – Orders for guardians to have care of protected person’s passport

CRIMINAL LAW – proceeds of crime – forfeiture orders

ADMINISTRATIVE LAW – whether procedural fairness applies to the giving of evidence – whether the Plaintiff had the right to be heard before issue of the Summons to attend hearing to give evidence – procedural fairness applies to entitle the Plaintiff to be heard on any objection to the giving of evidence or to a question asked – procedural fairness does not apply to the issue of the Summons – Summons dismissed.

CRIMINAL LAW – evidence – evidence relevant to defence of duress and the question of intention – evaluation of probative value – where prejudicial to co-accused – whether danger of unfair prejudice substantially outweighs probative value – gangland violence – turf war – where evidence ruled inadmissible when sought to be introduced by the prosecutor – different considerations when sought to be adduced as part of the defence case – where large body of other evidence going to the issue of duress – whether probative value thereby diminished – evidence excluded – whether exclusion of evidence should result in a separate trial – factors relevant to determination of separate trial application CRIMINAL PROCEDURE – case management provisions – defence reply inadequate and misleading – obligation on legal practitioners to comply with statutory provisions – significant waste of community resources – interruption and delay of jury trial.

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – allegation of jurisdictional error and error of law – failure to consider causation – failure to give reasons – no error – allegation that jurisdiction not exercised – allegation of lack of procedural fairness – issue relevant and opened up – relevant and irrelevant considerations examined – summons dismissed.

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – preliminary hearing as required by s 15(3) of the Act – application for appointment of two psychiatrists to examine the defendant – orders made pursuant to s 15(4) of the Act

PRACTICE AND PROCEDURE – notice of motion - application to vacate trial date – where liability admitted and quantum disputed – where amount of care required by plaintiff in dispute – where factual basis for expert opinion of rehabilitation physician changed – defendant not able to qualify expert to meet changed opinion in time for trial – motion dismissed

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – assessment of future economic loss – finding of early retirement compensated by buffer – issue of early retirement opened up in a way that insurer must have been aware of issue – no denial of procedural fairness – reasoning sufficient to expose the thinking of Claims Assessor – evidence existed on which finding could be based – no jurisdictional error or error of law.

TORTS – malicious prosecution – where interim ADVO obtained by police against the father on behalf of daughter and followed by police prosecution of an assault charge against the father – identity of prosecutor – whether prosecutor acted without reasonable and probable cause – whether credit-based findings concerning the subjective belief of the prosecutor shown to be wrong on Fox v Percy test – whether prosecutor acted maliciously – whether prosecutor acted on improper purpose of instituting and maintaining prosecution of assault charge against the father to support the ADVO proceedings

CRIMINAL LAW – murder trial - 81-year old Accused in custody - housed in Long Bay Hospital Wing - Accused being conveyed to court by circuitous and protracted route - recommendation made to Correctional authorities that Accused be transported to court by more direct route - recommendation not acted upon - concern that transport arrangements will interfere with administration of justice - strong recommendation made to be communicated personally to the Commissioner for Corrective Services and others

CRIMINAL TRIAL – jury - juror raises family health issue after empanelment of jury - no application by juror to be excused from jury panel - juror applies to be discharged - juror discharged - s.53B(d) Jury Act 1977 - whether trial should proceed with a jury of 11 - factors under s.53C - balance of jury discharged

CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns

CONTRACT – whether interest payable by purchaser to vendor on purchase price of rectified contract - meaning of “in accordance with the provisions herein” of a rectified contract – whether provision for interest a penalty; COSTS - Calderbank offer – whether offer involved significant compromise – whether vendor unreasonable not to accept offer

JUDGMENTS AND ORDERS - matters arising from earlier judgment – whether further consideration should be given to claims not developed at hearing – reconciliation of expenses incurred by parties after date the subject of evidence at hearing – quantification of reasonable costs incurred by owners corporation under strata management statement

INSURANCE – indemnity insurance – when cause of action arose – whether cause of action arose at time of occurrence of peril or when insurer failed to do what was required of it under the policy - whether claim out of time; LIMITATIONS – whether claim out of time - with what jurisdiction does transaction have closest connection – whether Northern Territory three year limitation or Victorian or New South Wales six year limitation period applies – whether defendant estopped from asserting three year limitation period applies – whether time should be extended under Limitation Act 1981 (NT); CONTRACT – whether claim barred by deed of release – proper construction of release; ESTOPPEL - whether claim barred by an Anshun estoppel – whether defendant estopped from asserting a three year limitation period

PRACTICE AND PROCEDURE – security for costs – what orders should be made concerning the costs of the application for security – whether earlier orders should be set aside and the question reconsidered on basis that the parties were not heard in full

EQUITY - equitable estoppel – proprietary estoppel - family relationship - whether parents represented to adult son that they would subdivide land they owned and give him and his siblings a lot from the subdivision - whether any such representation relied on - subdivision did not proceed - whether unconscionable for parents not to honour any representation

CIVIL – contempt - whether correspondence to third party to proceedings constitutes an improper attempt to place pressure upon opponent

CIVIL – motion seeking default judgment – defence not filed after proceedings stayed – motion seeking interim damages – motion seeking costs of previous motion to do with court book – motion seeking gross sum costs order, payable forthwith – motion to strike out pleadings

CIVIL – appeal from Local Court – refusal of Magistrate to set aside default judgment – adequate explanation for delay and bona fide defence - overarching interests of justice

SUCCESSION – Family Provision – Requirement for adequate and proper maintenance - Whether applicant left with insufficient provision – Claims by adult children – Court not satisfied applicants left without adequate provision – Applications for family provision relief dismissed

EQUITY – unconscionable conduct and promissory estoppel – first defendant makes documentary including film of the plaintiff – plaintiff alleges that the first defendant represented to her that the film footage taken would only be used for the plaintiff’s film school course – documentary completed and proposed to be shown at an international documentary film festival – rights to the documentary assigned to the second and then the third defendants – whether there is a serious question to be tried that the documentary was filmed in circumstances in which the plaintiff was assured that its use would be limited; and whether the first defendant has unconscionably resiled from their assurance to the plaintiff. INJUNCTION – interlocutory injunction – whether an interlocutory injunction should be granted - whether the plaintiff has established a serious question to be tried – whether the balance of convenience, questions of hardship and other relevant factors favour the grant of an interlocutory injunction in the circumstances - on what terms should any injunction be granted.

PROCEDURE – order of Registrar for writ of execution – review by the Court pursuant to UCPR r 49.19 – writ related to judgment debts assigned under s 12 of the Conveyancing Act 1919 (NSW) – whether assignment effected despite incorrect file number – debt could be identified with sufficient particularity – not in interests of justice to set aside Registrar’s decision PROCEDURE – judgments and orders – stay – enforcement of costs judgment under s 135 of the Civil Procedure Act 2005 (NSW) – justice of the case does not require a stay

PRACTICE AND PROCEDURE – pleadings – notice of motion – application for leave to amend statement of claim

CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution – whether the proceedings are an abuse of process – whether the appellant can receive a fair trial– double jeopardy –House v The King principles

PRACTICE AND PROCEDURE – slip rule – variation of orders and reasons in principal judgment

CRIMINAL LAW – sentence appeal – supplying a prohibited drug – applicant serving other sentences – whether sentencing judge appropriately took into account the fact of those other sentences when imposing sentence in this matter – no error – appealed dismissed.

PRACTICE AND PROCEDURE – application to vacate trial date – murder – where defendant seeks time to have an expert examine victim’s computers –circumstantial case – where victim possibly in contact with unknown persons via online dating sites – whether examination of computers will advance reasonable hypothesis consistent with innocence

CRIMINAL LAW – application for stay of proceedings – Dietrich principles – accused does not meet requirements – application for adjournment in the alternative – balancing of considerations in administration of justice – application refused

CRIMINAL LAW – Sentencing – murder together with four offences of aggravated armed robbery – felony murder and accessorial liability – very low level of objective culpability for murder – offender with difficult background – a number of relatively minor previous offences – four robberies committed within one week – aggregate sentence imposed for all five offences.