Cases and authorities

INJUNCTIONS – Interlocutory – Asset preservation order – No issue of principle

PRACTICE AND PROCEDURE – Judgments and Orders – registration of foreign judgments – Foreign Judgments Act 1991 – requirements to be satisfied

CHILD WELFARE – No exceptional or extraordinary circumstances demonstrated for Court to interfere in Children’s Court proceedings

CRIMINAL LAW – verdict – judge alone trial – special hearing – murder – unlawful and dangerous act manslaughter – reasons for verdict – circumstantial case – relationship evidence – volatile relationship – evidence of lies – facts inconsistent with the accused’s version – expert evidence as to whether death occasioned by accidental or deliberate act based on forensic pathology – examination results – evidence must identify the basis and reasoning upon which an opinion as to accidental death was and could be supported – having regard to material findings at autopsy examination including, in this case, findings as to wound depth, wound trajectory and absence of signs of physical injury consistent with an accidental stabbing

SUCCESSION – family provision – the plaintiff, a nephew of the deceased, lived in deceased’s household for at least 10 years between the ages of nine and 19 – no dispute that the plaintiff is an eligible person under Succession Act, s 57(1)(e) - no provision made for the plaintiff in the deceased’s will – whether there are “factors warranting” the making of an order for provision under Succession Act, s 59(1)(b) – whether adequate provision made for the plaintiff - whether any, and if so, what provision should be made for the plaintiff out of the estate of the deceased

CIVIL – application to file amended defence – enforceability of foreign judgment – penal nature of aspects of foreign judgment – severance of portion of foreign judgment – entry of default judgment for part of sum claimed

CORPORATIONS — Winding up — Application under s 283HB of the Corporations Act 2001 (Cth) to appoint liquidators as special purpose receivers over claims of a company – where applicants were previously appointed by court as special purpose receivers over other related claims under s 283HB of the Corporations Act 2001 (Cth) and liberty to apply for further orders was granted – where applicants also sought orders providing them funds to prosecute and defend claims as special purpose receivers of company – whether court has jurisdiction under s 283HB of the Corporations Act 2001 (Cth). CORPORATIONS — Winding up — Application for directions under s 479(3) of the Corporations Act 2001 (Cth) – where liquidators sought directions whether they are justified in not taking steps to cause company to replace trustee notwithstanding a potential breach by the company of s 283BD(c) of the Corporations Act 2001 (Cth) – whether to make direction under s 479(3) of the Corporations Act 2001 (Cth).

BAIL – multiple bail applications – Bail Act 2013 (NSW) s 74 – whether there are grounds to hear a further bail application in circumstances where there is a change in the identity of the surety and the sum offered BAIL – charge of supplying a commercial quantity of a prohibited drug – Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) – show cause offence – whether there is an unacceptable risk of non-appearance

PRACTICE AND PROCEDURE – security for costs – representative proceedings – individual litigant – no power to order security against group members but can be ordered against representative party – test to be applied – factors relevant – impecunious plaintiff – no litigation funder – capacity and willingness of group members to contribute – nature of claims – any contribution of group member to be proportionate to claim – opt out notice to request statement of capacity and willingness to contribute.

CRIMINAL LAW – appeal – Applicant seeks leave to file notice of motion re-agitating earlier application – Applicant sought to withdraw appeal – leave to file notice of motion refused. To the extent necessary leave to withdraw appeal granted.

CRIMINAL LAW – appeal – Crown appeal against inadequacy of sentence – recklessly inflicting grievous bodily harm – where the sentencing judge imposed a suspended sentence – objective seriousness assessed as “a little below the mid line seriousness” – whether the sentence was manifestly inadequate – whether the failure to admit evidence of CCTV footage amounted to a denial of procedural fairness – whether the sentencing judge erred by failing to have regard to the standard non-parole period – whether the trial judge gave excessive weight to subjective features – whether the residual jurisdiction of the court to dismiss an appeal was enlivened

CRIMINAL LAW – sentencing – supply prohibited drug – possess prohibited firearm – totality principle – whether the sentence for one offence can comprehend the criminality of the other - relationship of firearms to drug supply business – whether extent of accumulation produced a manifestly excessive overall sentence – no challenge to individual sentences

CRIMINAL LAW – appeal against sentence – supply prohibited drug – s 25(1) Drug Misuse and Trafficking Act 1985 – whether sentencing judge entitled to be satisfied that drugs were in the possession of applicant for purposes claimed by him – whether sentence manifestly excessive

TRUSTEE ACT – Section 63 – judicial advice – whether the trustee justified in commencing a construction suit – differences of opinion as to issues of construction – appropriate to give such advice

EQUITY – unjust enrichment – restitution – plaintiffs paid monies to the first defendant or for its benefit in part performance of a sale of shares agreement under which the first defendant was to transfer shares to the plaintiffs – the contract was never performed by the first defendant and it made performance impossible by selling the shares elsewhere - contract abandoned – total failure of consideration - plaintiffs entitled to restitution of monies paid over

CRIMINAL LAW – Evidence – Evidence of images on phone and computer of the deceased – Whether evidence should be excluded

CORPORATIONS — Managed investments – Judicial advice sought under s 63 of the Trustee Act 1925 (NSW) by responsible entity – where third party sought leave to be heard as intervenor – where responsible entity sought judicial advice that it would be justified adjourning extraordinary general meetings of security holders to allow time for consideration of resolutions – where responsible entity sought judicial advice that it would be justified publishing and distributing supplementary explanatory memorandum to registered unit holders – whether leave to be heard should be granted to intervenor – whether advice sought should be given.

PROCEDURE– interrogatories – personal injury – where applicant defendant not yet filed defence – where available material make it neither special nor necessary

CRIMINAL LAW – Evidence – Where Crown notified accused’s representatives of an intention to lead evidence shortly before the closure of the Crown case – Where evidence had been in the possession of the police for a significant period of time prior to the trial – Where Crown was on notice from the accused’s opening address of the basis upon which the accused’s case would be conducted – Whether the evidence sought to be adduced by the Crown was unfairly prejudicial – Evidence excluded

CRIMINAL LAW – Evidence – Recorded conversation to which accused a party – Whether conversation privileged – Whether probative value outweighed by the danger of unfair prejudice or the danger of the evidence being misleading or confusing

ADMINISTRATIVE LAW – JUDICIAL REVIEW – decision of Secretary under Costs in Criminal Proceedings Act 1967 – deferral under s 4(5) thereof to see what claimant “may receive” – no relevant criteria for deferral – decision quashed.

CRIMINAL LAW– practice and procedure – application to withdraw pleas of guilty in Local Court –evidence of fundamental misunderstanding of the burden and onus of proof in a criminal trial miss-stated by Magistrate – where evidence of misunderstanding unchallenged – failure of Magistrate to identify relevant legal principles an error of law

PROCEDURE – civil procedure – interlocutory application for stay of Local Court proceedings pending determination of proceedings in this Court – where Supreme Court proceedings include an application for the Local Court magistrate to disqualify himself – whether application involves fragmentation of part-heard criminal proceedings – whether stay warranted

BUILDING AND CONSTRUCTION – adjudication of payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether payment claim should be set aside – where payment claim made for same amount and works as earlier payment claim and no works completed after earlier claim – where building contract allowed for later reference date – whether two payment claims made in relation to same reference date contrary to s 13(5) – where earlier payment claim not accompanied by supporting statement contrary to s 13(7) – whether earlier payment claim served for purpose of s 13(5) – whether payment claim made in contravention of s 13(8)

SUCCESSION – wills – construction of will – “issue children” – whether intention to narrow usual meaning of “issue” – whether sufficiently clear that words were used in error when other words must have been intended

TAXES AND DUTIES — land tax — section 10AA(3) of the Land Tax Management Act 1956 — whether the primary production use of the lands is the dominant use of the lands — whether comparison required by s 10AA(3) of a primary production use with other uses is confined to a comparison with other physical uses of the land — held that it is not - section 10AA(3) requires a comparison of the current uses of the land — whether the mere holding of land by a property developer for future residential development and claiming tax deductions for borrowing costs and loss of value is a current use of land — held that it is not – held that to the extent that land is physically used for the carrying out of preliminary activities necessary to obtain approval for the use of land for a particular purpose the land is currently being used for a purpose other than primary production — concession that such physical use does not prevent primary production use from being dominant – whether such preliminary activities mean that use for residential development had commenced – held that it did not - using land for a rental use in respect of the agistment of cattle on the lands is a current use of land — using land for a rental and residential use of the dwellings on the land is a current use of land – held primary production use dominant except for one parcel in one land tax year

SUCCESSION - FAMILY PROVISION - The Plaintiff, a son of the deceased, applies, out of time, for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is also a child of the deceased and the sister of the Plaintiff - Deceased left a Will - Provision made for the Plaintiff – Modest actual estate and no notional estate – Whether sufficient cause for making an order extending the time for the making of the Plaintiff’s application – Sufficient cause established - 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 – Order for further provision by way of an amount equating to an additional percentage of the net estate absolutely, and, if the Plaintiff purchases accommodation, partly by way of an amount which equates to an additional percentage, which amount is by way of loan from the Defendant’s share of the estate, repayable to the Defendant, and secured, by registered mortgage, on any property purchased by the Plaintiff

PERSONAL INJURY – motor vehicle accident – vehicle driven by the respondent late at night struck the appellant who is walking in the same direction along a road in complete darkness – both respondent and appellant were intoxicated – primary Judge finds that the respondent, even if sober, had insufficient time to stop – the primary Judge also finds that the respondent negligently drove the vehicle partially along the gravel verge but that the appellant was contributorily negligent as to 40 per cent – whether the primary Judge erred in finding that the appellant was walking on the gravel verge of the unlit road and not on the road surface – whether the primary Judge erred in finding that the respondent breached her duty of care in driving on the gravel shoulder – whether the respondent’s negligence caused the appellant’s injuries.

CORPORATIONS — Voluntary administration – Deed of company arrangement — Application to modify operation of Part 5.3A of the Corporations Act 2001 (Cth) – where original DOCA’s specified termination date was earlier than date of execution of amended DOCA – where validity of amended DOCA may depend on original DOCA being valid at time of amended DOCA’s execution – where amended DOCA’s specified termination date had consequence that it would have terminated at the point of its execution – where events that occurred had consequence that amended DOCA would have terminated – where it would give effect to creditors’ expectations to preserve validity of relevant transactions – whether modification of Part 5.3A under s 447A of the Corporations Act 2001 (Cth) appropriate in the circumstances.

CRIMINAL LAW – separate trial application – where joint enterprise assault alleged – prejudicial evidence inadmissible against the applicant but admissible against co-accused – adequate jury directions can avoid unfair prejudice – application refused CRIMINAL LAW – objection to Crown witness evidence – whether evidence of uncharged assault irrelevant to Crown case or unfairly prejudicial to accused – assault inextricably linked with narrative of the offence – evidence relevant to the state of mind of the accused and admissible as transactional evidence

REAL PROPERTY – Torrens system – Potential rights under family law property settlement insufficient for caveat

REAL PROPERTY – Torrens system – Extension of caveat – Extension ordered but not lodged at LPI in time – Further orders – Real Property Act, 1900, ss 74J, 74O

CRIMINAL LAW – evidence given at Crime Commission made available to lawyers in criminal trial – non-publication order – material not to be published beyond legitimate use in trial proceedings – no question of principle

CRIMINAL LAW – form of indictment – particulars – where alternative count pleads different victim to substantive count – where alternative count pleads target of offence as being “another person” – whether authorised by statute creating of the offence – where application withdrawn – where other accused charged with same offence make no application – timeliness of application – where counsel’s instructions withdrawn

PROCEDURE – Notice of Motion seeking leave to file and serve Further Amended Statement of Claim – proceedings in negligence – secondary or derivative claim – whether defendants to proposed action properly named – whether cause of action disclosed – absence of expert report as to cause of action – whether orders of the Court of Appeal complied with

CRIMINAL LAW – informant witnesses – suppression and non-publication orders – pseudonym orders

CRIMINAL LAW – high-risk sex offender - application by State for second extended supervision order – order made for maximum period – consideration of content of conditions – access to pornography prohibited

REAL PROPERTY – statutory easements – Conveyancing Act 1919 (NSW) s 88K – whether right of way over part of neighbour’s land reasonably necessary for effective use of plaintiff’s land – alternative means of access available – alternative means not shown to be not feasible for financial or other reasons – proposed easement would have substantial effect upon ability to park vehicles on neighbour’s land – easement not shown to be reasonably necessary

PROCEDURE – civil – notice of motion seeking an order for costs – where plaintiff failed to claim an order for costs in the originating process or seek an order for costs when judgment was delivered – whether it is in the interests of justice to make the order.

CRIMINAL LAW – non-publication of private information – necessary for the safety of the witness – no question of principle

CRIMINAL LAW – non-publication of evidence in sentencing hearing – evidence relevant to lengthy trial about to commence – orders necessary to preserve the integrity of trial proceedings – no question of principle

CRIMINAL – application for bail - bail refused

ADMINISTRATIVE LAW – administrative tribunals – Medical Appeal Panel convened under workers compensation legislation – whether error of law to fail to classify psychological injury as secondary or primary – whether classification is a question for the Commission not approved medical specialist ADMINISTRATIVE LAW – administrative tribunals – Workers Compensation Medical Appeal Panel – sufficiency of statement reasons of medical assessor – whether medical assessor required to consider submissions and evidence contra to its decision WORKERS’ COMPENSATION – Workers Compensation Act – definition of “secondary psychological injury” – whether the phrase “physical injury” refers to personal injury arising out of or in the course of employment

Murder; judge alone trial; defence of mental illness; special verdict – not guilty on the ground of mental illness

CRIMINAL LAW – appeal and review – application for review after full hearing and appeal withdrawn – no special facts or circumstances – refusal of Court to deal with application under ss 78, 79(3) Crimes (Appeal and Review) Act 2001 (NSW)

CRIMINAL LAW – Evidence – Privilege – Conversation between accused and daughter whilst accused in custody – Where accused asked daughter to convey instructions to his solicitor – Where conversation monitored by authorities – Whether the communication was a confidential communication – Whether the dominant purpose of the conversation was the provision of relevant legal services – Whether any privilege was lost – Whether accused knowingly and voluntarily disclosed the substance of the conversation in light of his knowledge of the fact that the conversation would be monitored and/or recorded WORDS AND PHRASES – “knowingly and voluntarily”

Torrens title — Caveats — Application under s 74K of the Real Property Act 1900 (NSW) for extension of caveat until further court order – where Plaintiff submits various grounds for an interest in the property the subject of caveat – whether caveator’s claim to an interest in property raises a seriously arguable case for final relief – whether balance of convenience favours extension of caveat.

PRINCIPAL AND AGENT – Power of attorney under Conveyancing Act 1919 (NSW) s163B – Whether Defendant/Attorney had authority to transfer real estate of the principal to himself – No benefit to principal Breach of fiduciary obligations of attorney to principal – Transfer of property under Power of Attorney procured by unconscionable conduct of Defendant No appearance, by, or on behalf of, the Defendant

CRIMINAL LAW – Evidence – Where two accused being jointly tried for murder and supplying a prohibited drug – Where evidence sought to be elicited from a witness of a statement made to him by one accused that the other accused was “dangerous” – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that it may be unfairly prejudicial or be misleading or confusing – Where probative value of the evidence low – Evidence excluded