Cases and authorities

JUDICIAL REVIEW – grounds of review – mandatory relevant considerations in the examination and report of proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218F and 263 – whether Council proposal made under s 218F constituted a mandatory relevant consideration JUDICIAL REVIEW – grounds of review – procedural fairness in the examination and report of proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218F and 263 – whether denial of procedural fairness in Council proposal not being taken into account LOCAL GOVERNMENT – proposal for amalgamation of councils under the Local Government Act 1993 (NSW), ss 218D-218F – examination and report of proposal under ss 217F(2) and 263 – proper construction of s 263

NEGLIGENCE – slip and fall – plaintiff fell from ladder while working in building site – plaintiff claimed he slipped because of dust – plaintiff sued head contractor for failing to keep site sufficiently dust-free – challenge to primary facts as to presence of dust – nature of duty owed by head contractor to employee of subcontractor – whether head contractor in breach – causation – whether plaintiff had discharged onus – appeal dismissed

ADMINISTRATIVE LAW (judicial review) – appeal from Local Court to District Court under Crimes (Appeal and Review) Act – whether defendant told victim that he was HIV positive before having unprotected sexual intercourse – evidence – bias – severity of sentence – failure to allow a witness to be called in first appeal – whether primary judge excluded possibility that ex-wife colluded with victim

EQUITY – equitable compensation for costs incurred in proceedings – enquiry as to amount of compensation referred by consent to Referee – order sought that report of Referee be adopted – trial judge ordered that report be adopted and that parties including the appellant jointly and severally pay compensation – whether trial judge erred in finding appellant jointly and severally liable – whether trial judge ought to have found that appellant’s liability did not extend to more than 10 per cent of the equitable compensation ordered – whether liability ought to have been limited to an amount that was proportionate to the appellant’s liability under the first limb of Barnes v Addy – whether extent of liability impermissible having regard to the Civil Liability Act 2002 (NSW), Pt 4 PROCEDURE – whether leave to appeal required

CRIMINAL LAW - murder trial - application by one Accused to vacate trial date - public interest in trial proceeding on scheduled trial date - trial commencement date deferred for two weeks

CRIMINAL LAW – Evidence – Documentary evidence – Whether document misleading or confusing – Discretionary exclusion

APPEAL FROM LOCAL COURT – costs – costs review panel – application for leave to appeal from determination of costs review panel – whether Magistrate erred in dismissing the plaintiff’s application for leave to appeal

CORPORATIONS — Voidable transactions — Application for orders under s 588FF of the Corporations Act 2001 (Cth) – where Defendant relied on defence under s 588FG(2) of the Corporations Act 2001 (Cth) – whether defence under s 588FG(2) of the Corporations Act 2001 (Cth) is established.

PROCEDURE – civil – application for extension of time to file appeal – lengthy delay – plaintiff took casual approach to lodging an appeal – case on appeal not reasonably arguable – no actual prejudice demonstrated – application refused APPEAL – Local Court – plaintiff’s vehicle damaged in flash flood – insurance provider denied payment – whether Magistrate erred in law by finding plaintiff did not satisfy onus of proving his claim – Magistrate found that the plaintiff’s version of events was not truthful or credible – whether Magistrate failed to provide any or sufficient reasons – reasons given were sufficient – appeal dismissed

CRIMINAL LAW – sentence appeal – assault and detain with intent to obtain advantage – whether sentencing judge erred in taking into account “vigilante nature” of offending as aggravating factor where punishment of victim is element of offence – whether sentence manifestly excessive CRIMINAL LAW – conviction appeal – whether verdict unreasonable or insupportable having regard to evidence

PRACTICE AND PROCEDURE – Dietrich application – admission of additional documents after cross-examination – hearing adjourned to allow time for affidavit in support to establish the provenance of documents to be prepared

FAMILY LAW - Family Law Act 1975 - urgent interlocutory application – wife seeks restoration of possession of the family home - husband locked wife out of family home approximately 3 weeks before proceedings commenced – wife claims she needs to be close to medical care which is near the family home – no issue in the proceedings that the wife can live in the family holiday house but which is more distant from medical care – parties reached agreeable arrangements about the living arrangements for the children - whether the wife should be restored to possession of the family home – action commenced in the Supreme Court of New South Wales, seeking remedies in aid of an action in common law trespass – whether relief more appropriately granted under the Family Law Act 1975. CROSS VESTING OF ACTIONS - wife brings proceedings against husband in relation to the occupation of a home which is matrimonial property – parties agree that the action in the Supreme Court should be cross vested to the Family Court of Australia under Jurisdiction of Courts (Cross-Vesting) Act 1987, (NSW), s 51(1)(b) and the Court is of the opinion that it is an appropriate case to do so – exercise of the Court’s jurisdiction under Jurisdiction of Courts (Cross-Vesting) Act 1987, (Cth), s 4(1) to make orders under the Family Law Act 1975.

PROCEDURE – transfer of proceedings – motor vehicle accident – where no complex issue of law raised

CRIMINAL LAW

LIMITATIONS – defamation proceedings commenced outside limitation period – related proceedings also commenced in Fair Work Commission – burden of proof on plaintiff to show it was not reasonable to commence within time period – burden not discharged – cause of action not maintainable DEFAMATION – employee of Commonwealth – alleged misconduct – Intent to Sanction Minute and Statement of Reasons circulated to supervisors and others involved in investigation – defence of qualified privilege made out

PRACTICE AND PROCEDURE – civil – notice of motion seeking leave to file amended summons – where summons and amended summons seek to challenge a decision of the Local Court – where both summonses are not in proper form and fail to articulate the basis upon which relief is sought – whether amended summons should be allowed - whether summons should be struck out PRACTICE AND PROCEDURE – civil – notice of motion seeking summary dismissal of proceedings – where the Local Court Magistrate made findings of fact based on evidence before the Local Court – where the plaintiff seeks to challenge the Magistrate’s decision in the Supreme Court – whether the outcome of the proceedings is sufficiently certain to warrant summary dismissal

PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision refusing to vacate an order to provide security for costs and dismissing the statement of claim for want of prosecution – whether any grounds shown justifying a grant of leave

TORTS – claim for damage to truck – truck in slow lane fails to merge with overtaking lane and collides with guard rail – whether primary Judge erred in finding that truck in overtaking lane was not in breach of duty by not giving way – whether primary Judge failed to give adequate weight to video footage – whether primary Judge erred in finding that driver in slow lane was solely responsible for the accident COSTS – indemnity costs – whether appellant justified in not accepting offer of compromise

PROCEDURE — Application to have hearing dates vacated — where Applicant had previously been granted a vacation of hearing dates – whether principles in ss 56–58 of the Civil Procedure Act 2005 (NSW) support the vacation of hearing dates.

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up – where matters arising from company’s change of business address led to its failure to pay its taxes which resulted in its winding up – whether company is and will be solvent in future – whether company’s conduct was contrary to public interest such that court may decline termination of winding up – whether to terminate winding up.

TORTS – negligence – plaintiff injured while helping truck driver lift trailer ramp – driver aware that ramp was not functioning properly – foreseeable risk of harm that ramp would fall and injure plaintiff – vicarious liability of employer – employer also liable on its own account – failure to properly instruct employee as to safe conduct TORTS – negligence – causation – accident arising out of deficient weld which caused ramp to fall – liability of owner of trailer – owner in breach of duty to repair and maintain vehicle TORTS – negligence – liability of third party contractor – contracted to install hydraulic system to raise and lower trailer ramps – no fault with hydraulic system – trailer bracket to which hydraulic system connected failed causing ramp to fall – evidence excluded possibility that contractor installed brackets itself - whether duty to inspect welding of the bracket – no evidence of deficient appearance – trailer tested multiple times for functionality – no breach of duty of care on behalf of third party contractor INSURANCE – indemnity insurance – whether accident fell within exclusion clause in insurance contract – ambiguity in exclusion clause – clause interpreted in light of statutory background and commercial purpose of the parties – purpose to exclude cover for risks covered by compulsory third-party motor insurance – whether exclusion clause disallowed by s 46 Insurance Contracts Act – exclusion clause not limited by reference to whether defect present at time contract entered into – s46 not applicable - characterisation of accident – accident arose out of defect in trailer while vehicle not being driven – exclusion clause did not apply to the accident – policy covers liability of driver and truck owner – judgment for plaintiff and first and second defendants against insurer

SUCCESSION – action by residuary beneficiary on behalf of estate for the recovery of monies claimed to be owed to an estate – executors unwilling to bring action – deceased worked in a bridal couturier business for approximately 25 years before her death. GIFTS – two and a half years before she died, the deceased wrote a cheque in favour of her son-in-law for approximately $1.2 million – whether the deceased gifted the cheque monies to her son-in-law and daughter, or whether the cheque monies were a loan to them from the deceased. EMPLOYMENT - beneficiaries claim the deceased was entitled under the Long Service Leave Act 1955 to long service leave in respect of her employment with a corporate entity controlling this business in which entity she held a substantial shareholding interest - whether the deceased was a ‘worker” within the Act – whether the deceased worked continuously for the corporate entity – whether the deceased was entitled to long service leave. RESTITUTION – the deceased requests her son-in-law to pay $15,000 to her son on account of the son’s then anticipated medical expenses – whether the sum of $15,000 is recoverable by the son in restitution from the deceased’s estate.

CRIMINAL LAW – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – adequacy of trial judge’s directions as to the legal test in s 61HA(3)(c) of the Crimes Act

CRIMINAL LAW – murder trial - Accused seeks to raise partial defence of extreme provocation - Accused seeks to adduce tendency evidence with respect to extreme provocation - whether a pretrial hearing and rulings are appropriate - matters appropriate for pretrial hearing and rulings

CRIMINAL LAW – murder trial - subpoenas for production directed to Office of Environment and Heritage - claim of client legal privilege - claims upheld

CRIMINAL LAW –

INJUNCTIONS – Asset preservation order sought ex parte – Strong evidence of fraud – No issue of principle

CRIMINAL LAW – Practice and Procedure – Where accused withdrew instructions from trial counsel – Where new counsel was then engaged who was available to assume the conduct of the trial – Where adjournment of 10 days sought to allow new counsel to read material and obtain instructions – Where Crown case all but closed – No necessity for newly briefed counsel to direct attention to cross-examining witnesses – Where counsel’s attention would necessarily be directed to leading evidence from the accused in his case – Where one week had already passed without the jury hearing evidence – Where newly briefed counsel had already conferred with the accused and had commenced reading the trial transcript – Adjournment of 3 days granted

PRACTICE AND PROCEDURE – application for summary judgment – statement in practice note that such applications will not generally be entertained in the Commercial and Technology and Construction Lists – questions of construction – whether appropriate to resolve conflicting lines of authority or matters of discretion on summary judgment application

PRACTICE – application to vacate hearing – no sound basis demonstrated – application dismissed

PRACTICE – application for interlocutory relief pending determination of application for special leave – poor prospects of obtaining special leave – necessity of demonstrating exceptional circumstances – onus not discharged – application dismissed

CORPORATIONS – winding up – Commissioner entered a credit in company’s Running Balance Account – Commissioner set off credit against other tax liabilities in other accounts – whether set off contrary to Corporations Act 2001 (Cth) ss 500, 501, 553 or 555 TAXES AND DUTIES – Running Balance Accounts – Part IIB of Tax Administration Act 1953 (Cth) – company in liquidation filed amended assessment – Commissioner entered a credit in company’s Running Balance Account – whether Commissioner empowered or required to offset that amount against outstanding debts in separate accounts – whether Commissioner’s approach inconsistent with pari passu principle

PRACTICE AND PROCEDURE – security for costs – discretion to order security for costs enlivened – no relevant delay - security for costs order made – quantum - UCPR r 42.21 – s 1335(1) Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE – notice of motion for expedition of proceedings – medical and nursing care of 93 year old – Notice of Motion with consent of both parties

PRACTICE AND PROCEDURE – professional negligence claim – disagreement between parties as to drafting of questions for expert conclave – no joint statement of facts

CRIMINAL LAW – procedure – application to vacate trial date – accused unrepresented – insufficient funds to secure services of counsel – trial date previously vacated - duty and obligations of a trial judge to ensure an unrepresented accused receives a fair trial - trial date confirmed

PROCEDURE– criminal law – application for stay of committal proceedings in the Local Court – where judicial review application pending in Supreme Court

CRIMINAL LAW – administrative law – judicial review of decision of magistrate – adjournment – where relevant transcripts – where plaintiffs are self-represented plaintiffs and in custody

REAL PROPERTY – Torrens system – Caveat by registered proprietor – Mortgagee sale – Contracts exchanged – No serious question to be tried of breach of duty by mortgagee – No issue of principle

CHILD WELFARE – Care and protection of children – Proceedings in Children’s Court – No basis for Supreme Court proceedings in parens patriae jurisdiction

PROCEDURE – application for determination of separate question – interests of justice dictate hearing of the separate question – order for separate question made through short minutes of order produced by parties

CRIMINAL LAW – practice and procedure – adjournment - trial vacation – late service by defence of expert reports raising substantial impairment

CRIMINAL LAW – Practice and Procedure – Where accused withdrew instructions from trial counsel – Where accused given an opportunity to engage new counsel – Where no new counsel said to be available – No evidence adduced by the accused explaining the circumstances in which instructions were withdrawn – Further adjournment of the trial sought – Where jury had already been absent for one week without hearing any evidence – Application refused CRIMINAL LAW – Practice and Procedure – Where accused withdrew instructions from trial counsel – Where accused given an opportunity to engage new counsel – Where no new counsel said to be available Where accused being tried jointly with a co-accused – Where accused sought that the trials be separated in light of the fact that he was now unrepresented – Application for separate trial previously made and refused – No change in circumstances warranting an order for a separate trial – Application refused CRIMINAL LAW – Practice and Procedure – Where accused withdrew instructions from trial counsel – Where accused given an opportunity to engage new counsel – Where no new counsel said to be available – Where accused sought a discharge of the jury – Necessity to balance a number of competing interests – Trial in its tenth week – Crown case all but completed – Co-accused not legally aided and privately funding his trial – Balance in favour of the trial continuing with the accused unrepresented – Application for discharge of the jury refused

SENTENCING – manslaughter – offence of excessive defence manslaughter – perception of circumstances by the offender – belief of need to act in self-defence – deceased partner (the victim) approached with knife subsequent to aggression and violent conduct of the offender – deceased’s actions did not constitute provocation but were responsive to offender’s conduct – offender grabbed knife from deceased and inflicted fatal stab wound – changed circumstances relevant to the gross disproportion of the offender’s response to deceased’s actions – offence of excessive self-defence manslaughter involved a high order of objective criminality

PROCEDURE – costs – plaintiff’s application for further orders that the defendant pay costs on an indemnity basis – consideration of circumstances where the court will order an unsuccessful defendant on an application to set aside creditor’s statutory demand to pay costs on an indemnity basis – whether the defendant’s prosecution of its defence involved the degree of delinquency required – HELD considering all circumstances the defendant was entitled to challenge the plaintiff's case that there was a genuine dispute as to the existence of a debt – whether there was a proper Calderbank offer from the plaintiff – HELD one day was insufficient time for defendant to consider offer – HELD offer not limited to settlement of present proceedings – required compromise of entire dispute between parties – HELD plaintiff’s application for indemnity costs rejected and plaintiff to pay costs

PROCEDURE - preliminary discovery - application for preliminary discovery under Uniform Civil Procedure Rules, r 5.3 – applicant for preliminary discovery brings motion for leave to issue subpoenas and a notice to produce - three documents subpoenaed are the same as the documents being sought on preliminary discovery - whether the issuing of the subpoenas and the notice to produce will bypass the application for preliminary discovery - whether issuing of the subpoenas and the notice to produce would be an abuse of process – whether the subpoenas are otherwise oppressive in form.

MENTAL HEALTH – Mental Health Review Tribunal – Appeal – Community Treatment Order – Forced medication by depot injection – MENTAL HEALTH ACT 2007 NSW ss 51, 53, 163, 164

COSTS – departing from the general rule – deposit paid to stakeholder under contract for sale of land – vendor claims to have validity terminated contract – vendor seeks release of deposit – stakeholder not prepared to release funds without consent of parties or court order – vendor successful in obtaining orders for release of funds – funds to be held pending further order of court or consent of purchaser – whether vendor entitled to costs against stakeholder – whether stakeholder acted unreasonably in not acceding to request for release of funds CONVEYANCING –contract for sale of land– deposit held by stakeholder – vendor claims to have validly terminated contract – identity of party entitled to deposit unclear – whether stakeholder obliged to release funds to vendor

EVIDENCE – “without prejudice privilege” – ambit and scope of privilege – where documents produced in the course of negotiating a dispute are privileged from production in a later dispute – nature of connection required for privilege to apply – additionally, whether privilege waived.

BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application BAIL – sexual assault committed while on bail for another offence – show cause offence – whether applicant has shown cause why his detention is not justified