Cases and authorities

TORTS – negligence – workplace injury – appeal against no finding of liability –plaintiff failed to prove how injury suffered – absent finding as to mechanism of injury, not possible to find breach of duty APPEAL – civil – function of appellate court – judicial restraint – whether open to appellate court to disturb trial judge findings on credibility and reliability – onus of proof – whether appellate court less likely to intervene where trial judge has declined to make a finding of fact in favour of party bearing onus APPEAL – challenge to the adequacy of trial judge’s reasons – whether reasoning process compartmentalised – reasons to be read as a whole – “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 EVIDENCE – Jones v Dunkel inference – failure to call witnesses – whether inference valid where no reason to believe witnesses in camp of that party – unlikely witnesses would recall events or conversations

CRIMINAL LAW – appeal against conviction – whether the trial judge misdirected the jury with regard to evidence of complaint – whether verdicts of guilty rationally consistent with verdicts of acquittal – whether verdicts of guilty unreasonable or unable to be supported

CRIMINAL LAW – sentencing – application for leave to appeal – parity with co-offender – identical sentences – variation in non-parole periods due to refusal to find “special circumstances” for purposes of Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 – different finding for co-offender – no error shown

JURISDICTION – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against acquittal by jury at direction of trial judge – whether grounds of appeal raise questions of law alone – both grounds assert errors of law in approach taken by trial judge CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for constructive murder – whether trial judge erred by not applying correct test when determining no prima facie case of constructive murder – joint criminal enterprise – where death caused by ignition of ring burner – error in reasoning of trial judge – liability of respondent not derivative – principles of joint criminal enterprise applicable to foundational crime of manufacturing large commercial quantity of a prohibited drug – respondent liable for all acts taken in pursuit of enterprise – ignition of ring burner within this enterprise – acquittal of murder charge quashed CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for constructive murder – where death caused by ignition of ring burner – Crimes Act 1900 (NSW), s 18(2)(a) – whether act causing death was “malicious” within s 18(2)(a) CRIMINAL LAW – appeal – Crimes (Appeal and Review) Act 2001 (NSW), s 107(2) – appeal against directed verdict of acquittal for involuntary manslaughter by unlawful and dangerous act – whether trial judge erred by not applying correct test when determining no prima facie case of manslaughter – joint criminal enterprise – where death caused by ignition of ring burner – act causing death unlawful and dangerous – error in reasoning of trial judge – liability of respondent not derivative – lighting ring burner was within contemplation of respondent in participation of drug manufacturing offence – acquittal of manslaughter charge quashed WORDS AND PHRASES – “malicious” – Crimes Act 1900 (NSW), s 18(2)(a) and Sch 11, cl 65

CRIMINAL LAW – appeal against sentence – two counts of dangerous driving occasioning death – one count of dangerous driving occasioning grievous bodily harm – three further offences placed before the sentencing judge pursuant to a s 166 certificate – whether the aggregate sentence imposed is manifestly inadequate – whether offences that are placed before the District Court or the Supreme Court by way of a s 166 certificate can be incorporated in an aggregate sentence

PRACTICE AND PROCEDURE – proposed amendment to cross-claim – whether proposed claim sustainable - whether critical allegations absent – whether leave should be refused

PRACTICE AND PROCEDURE – order to reinstate proceedings – no appearance of the defendant

CRIMINAL LAW – practice and procedure – application for discharge of the jury – joint trial – whether evidence caused prejudice to applicant – evidence admitted on basis of relevance to credibility of a witness’ evidence inculpating a co-accused – where evidence would not have entered a trial of the applicant alone – no unfair prejudice in the circumstances – application refused

PROCEDURE – civil - transfer of proceedings from District Court to Supreme Court

PROCEDURE – application to cross-vest proceedings to Supreme Court of Victoria – whether it is in the interests of justice to cross-vest – where competing considerations are evenly balanced – no evidence to suggest that Supreme Court of Victoria is more appropriate or natural forum – application denied

CRIMINAL LAW – application to discharge individual juror – appropriate procedure – questioning the juror on oath – whether juror unable to perform functions of juror – application withdrawn on the basis of evidence given by the juror

COSTS – Notice of Motion seeking order for costs of an earlier Notice of Motion and costs thrown away by reason of the vacation of the hearing date – whether costs should follow the event – no point of general principle

CONTRACT – sale of goods – where agreement to purchase scaffolding equipment at price per tonne and equipment delivered – part payment – claim to balance – no question of principle

NON-PUBLICATION ORDERS – previous non-publication orders made in respect of interlocutory judgments in criminal proceedings – accused unsuccessfully sought stay of proceedings pending application for special leave to appeal – single judge High Court refused stay and made non-publication order expiring March 2016 – order expired without application to extend – accused’s trial occurred in meantime but jury was discharged before verdict – High Court’s reasons published on internet – basis for previous non-publication orders no longer remains – orders discharged – whether judgments to be placed on Caselaw.

BUILDING AND CONSTRUCTION – progress payments – application for summary judgment in respect of debt due under s 15(2)(a)(i) of Building and Construction Industry Security of Payment Act 1999 (NSW) – where defendant made admission that circumstances in s 15(1) existed – where clear on evidence that payment claims of head contractor served without supporting statement contrary to s 13(7) – whether defendant should be permitted to withdraw admission – whether service contrary to s 13(7) has effect of there being no service within s 14(4)(a)

COSTS – lump sum costs orders - plaintiff’s proceedings summarily dismissed - circumstances where appropriate to make lump sum costs order - plaintiff asserts that he is impecunious – discount to be applied – lump sum cost order made

PROCEDURE – civil – notice of motion seeking variation of costs order – whether court should exercise discretion to vary costs order

LEGAL PRACTITIONERS – Fidelity Fund – claim out of time – whether Fidelity Fund disallowed claim – whether Fidelity Fund failed to consider claim – nature of appeal under s 90D Legal Profession Act 1987 – where no determination by Fidelity Fund of failure to account – whether plaintiff entitled to substantive relief – extension of time to lodge claim on Fidelity Fund

APPEAL – new point on appeal – common ground at trial that court would determine whether “Total and Permanent Disablement” (TPD) clause satisfied if insurer found to have breached obligations to Insured Person – whether insurer should be permitted to depart on appeal from approach taken at trial – where potential unfairness to Insured Person INSURANCE – life insurance – group policy taken out by trustee of superannuation fund – benefit for TPD payable if Insured Person provided proof to satisfaction of insurer that he or she was so incapacitated as to be “unlikely ever” to return to employment for which he or she was reasonably qualified by education, training or experience – proper construction of “unlikely ever” – whether obligation to accord procedural fairness waived – whether insurers breached obligations to Insured Person by rejecting claims – proper approach to construing letter declining cover – whether, if breach established, claim should be determined by court or remitted to insurer – whether Insured Person satisfied TPD definition PRECEDENT – body of appellate authority consistent throughout Australia – doubts expressed in two appellate decisions – where matters raised by way of doubt had previously been addressed in authorities – whether court should depart from existing line of authority – McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197 and Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWCA 104; 89 NSWLR 412, considered TRUSTS – group insurance policy held by trustee – enforcement of rights under policy by member as opposed to trustee WORDS AND PHRASES – “unlikely ever” – utility of dictionary definitions – Beverley v Tyndall Life Insurance Co Ltd [1999] WASCA 198; 21 WAR 327, followed – headnote in White v The Board of Trustees [1997] 2 Qd R 659 disapproved

INSURANCE – commercial motor vehicle policy – height of excavator carried on vehicle exceeded low clearance height and struck spans of Hexham Bridge – whether insurers entitled to rely upon exclusion in respect of damage caused by recklessness and breach of condition as to taking of reasonable care – onus of proof in relation to compliance with condition – whether employee’s conduct in driving onto or over bridge involved failure to take such precautions as he considered reasonable having regard to risk recognised – whether primary judge erred in finding insurer entitled to refuse indemnity by reason of employee’s recklessness – whether obligation imposed by condition to comply with statutory obligations absolute

ADMINISTRATIVE LAW – judicial review of District Court decision dismissing an appeal from a conviction in the Local Court – whether the District Court Judge committed a jurisdictional error – larceny of a motor vehicle as a bailee – Crimes Act 1900 (NSW) s 125 – whether District Court Judge failed to make a finding that the applicant’s conversion of the vehicle had been fraudulent – whether the District Court Judge addressed the applicant’s claim to a repairer’s lien over the vehicle – whether primary Judge erred in determining that the applicant had no genuine belief in a claim of right

CONTRACTS – whether promise to transfer burial licence gave rise to binding contract – whether mutual promises offered in consideration of one another – whether objective intention to create legally binding relations ESTOPPEL – by conduct – proprietary estoppel by encouragement – promise by applicant to transfer burial plot to respondent to enable him to be buried next to his late wife in due course – whether loss of ability to be buried next to wife as a result of applicant’s failure to honour promise sufficient detrimental reliance for purposes of equitable estoppel

SUCCESSION – intestacy – claim that plaintiff was de facto partner of deceased for many years – claim not accepted by primary judge – conflict between evidence of plaintiff and evidence of neighbours and social workers – paucity of documentary evidence – inconsistencies in plaintiff’s case – no appellable error shown – appeal dismissed

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – withdrawal by defendant’s solicitor – no appearance by defendant – contract in existence between builder and developer – defects in residential building work result of builder’s work – breach of statutory warranties – judgment for plaintiff with costs

INJUNCTIONS – Continuation of asset preservation order first made ex parte – No issue of principle

CRIMINAL LAW – admissibility of comments by accused to police about “his boys” – whether capable of supporting inference that the accuse in a leadership role of crime gang – whether evidence prejudicial – evidence admitted – no question of principle

CRIMINAL LAW – proceeds of crime – restraining order – ex parte

TORT – negligence – lift stopping out of level with fixed floor – failure of plaintiff to prove dimension of trip hazard – duty of care owed by a building management company which operated the lifts and occupied the lift foyers – content of the duty – requirement to institute maintenance regime – no breach established PERSONAL INJURY – trip accident alleged to have caused permanent exacerbation of pre-existing cervical spondylosis – incomplete pre-accident history given to post-accident treating specialist – competing diagnosis of unchanged idiopathic pain disorder – permanent exacerbation not proved

EVIDENCE - expert evidence - expert witness code of conduct - failure to provide code to expert witness - whether failure cured by later affidavit asserting compliance with the Code - s79(1) Evidence Act 1995 - principles in Dasreef - no application of specialised knowledge - whether defendants are prevented by earlier order from objecting to evidence - s135 Evidence Act 1995 - exclusion - probative value outweighed by unfair prejudice.

TORTS – medical negligence – whether misdiagnosis – whether unreasonable delay in carrying out cholecystectomy – whether delay resulted in further medical conditions and disabilities – claims not supported by experts APPEAL – civil – function of appellate court in relation to fact finding at trial – whether conflicting statements in written records provide basis for appellate interference with the findings of trial judge – selective reading of evidence – importance of joint expert report and evidence in conclave

PROCEDURE – application for leave to appeal against orders made without reasons – whether orders made by consent – leave application futile

CRIMINAL LAW – conviction appeal – appellant’s guilt determined by majority verdict of jury – whether terms of s 55F(2)(b) of Jury Act 1977 (NSW) complied with – whether point reached in trial whereby majority verdict could be taken – whether court could have been satisfied after examination on oath of a juror that it was unlikely that the jurors would reach a unanimous verdict after further deliberation – s 55F(2)(b) not complied with – new trial ordered.

COSTS – Offer of compromise – r 20.26 and r 27 of the Uniform Civil Procedure Rules 2005 (NSW) – balance of proceedings adjourned

PROCEDURE – civil - transfer of proceedings from District Court to Supreme Court

CIVIL LAW – procedure – application to vacate hearing date – expert opinion

REAL PROPERTY – Torrens system – Caveats – Construction of contract for sale – No caveatable interest

REAL PROPERTY – Ejectment – Execution – Stay of writ for possession – No issue of principle

PROCEDURE — Costs — Order sought for costs on indemnity basis – where Calderbank offer not accepted by unsuccessful Defendant – whether it was unreasonable for Defendant not to accept the offer.

PRACTICE AND PROCEDURE – judgments and orders – application for stay of execution of writ of possession – NSW Civil and Administrative Tribunal

The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 remitted to the Equity Division by Court of Appeal - Matter relisted before Court – No appearance by Plaintiff – Matter adjourned to enable Plaintiff to appear - No matter of principle

BUILDING AND CONSTRUCTION – Home Building Act 1989 – statutory warranties – two preliminary issues – whether there was a contract between defendant and the Developer – contract found to be operational - whether plaintiff’s claim statute barred – court held plaintiff’s claim not commenced within time – unnecessary to deal with further issues

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act 2001 (NSW) – second s 78 application – asserted “Muldrock error” – “axiomatic error” - asserted “Kentwell error” - doubt or question as to the convicted person’s guilt as to any mitigating circumstances – question of referral to the Court of Criminal Appeal

CONTRACT – rectification – auction – where contract specified purchase price to be inclusive of GST -whether common intention that purchase price be exclusive of GST

SUCCESSION – Wills, probate and administration – Making a will – Testamentary capacity – Soundness of mind, memory and understanding – Knowledge and approval – Suspicious circumstances rule – History of Mental Illness – Will valid SUCCESSION – Wills, probate and administration – Distinction between grant in common form and grant in solemn form – Application for revocation of grant – Principles applicable – Onus of proof – Case management, substance over form – Confirmation of grant in common form as solemn form grant – Practice – Available forms of orders

CRIMINAL LAW – evidence – relationship evidence sought to be used for tendency to show aggression and use of knives – use of knife not in issue in the proceedings – prior incidents not clearly aggression by accused – tendency purpose rejected.

CORPORATIONS – winding up – winding up in insolvency – whether company rebutted presumption of insolvency – current assets and liabilities of company – evidence substantiates current assets exceeding current liabilities – held, company is able to pay debts as and when they fall due.

PROCEDURAL – adjournment of Dietrich application to permit accused to obtain litigation funding from public sources – short adjournment granted – no point of principle

PROCEDURE – civil – security for costs – conduct of the plaintiff

PROCEDURE – civil – stay of execution of writ of possession