Cases and authorities

CRIMINAL LAW – breach of dimension requirement contrary to s 56 of the Road Transport (General) Act 2005 (NSW) – severe risk breach pursuant to s 37(3) Road Transport (General) Act – seriousness of breach separately assessed pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure Act) 1999 (NSW) – plea of guilty – consent orders in respect of roads compensation order and costs

ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) for inquiry into applicant’s convictions – Supreme Court Act 1970 (NSW), s 69 – declaration sought that trial judge made error of law in finding that no sense of unease or disquiet arises in respect of applicant’s convictions – whether trial judge erred by not applying the appropriate test for an application under s 78 Crimes (Appeal and Review) Act 2001 (NSW) – no error of law found – application dismissed

PROCEDURE – costs – s 98(1) Civil Procedure Act 2005 (NSW) – cost order against non-party – where plaintiff allegedly made misrepresentations prior to defendant entering lease – where the defendant alleged obstruction and access problems to leased premises caused loss of customers and business decline – where finding by primary judge of improper conduct of proceedings by director of defendant – knowing falsity of defendant’s allegations – whether error in material finding of fact – House v King error – re-exercise of s 98 costs discretion – whether exceptional circumstances – where director of defendant had interest in litigation outcome as significant creditor and indirect shareholder of the defendant – where the director managed the litigation for the defendant – where the defendant impecunious – whether director of defendant acting reasonably should have realised no reasonable prospects of success

PROCEDURE - costs - arguments advanced by the appellants were so lacking in merit as to warrant an award of indemnity costs of the appeal - appeals as to costs - whether to award indemnity costs

PROCEDURE – where proceedings are already provisionally fixed for hearing – entitlement of parties to funds – whether resolving question of entitlement is inconsistent with resolving question of pooling – questions need to be decided at some stage – held, question of entitlement can be resolved on one of days of hearing

REAL PROPERTY – possession of land – defendants given a further opportunity to identify defence to claim for possession – no defence shown – plaintiff at liberty to seek default judgment

PROCEDURE – civil judgments and orders – slip rule – failure to make order for security for costs – agreement between parties as to amount but not as to conditions – decision not to make order a result of a deliberate consideration of the issues – slip rule inapplicable

COSTS – appeal costs – suitors’ fund – judicial review pursuant to s 69 of Supreme Court Act 1969 (NSW) – decision of a medical appeal panel under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – proceedings not an “appeal” for purposes of Suitors’ Fund Act 1951 (NSW)

CRIMINAL LAW – costs – Costs in Criminal Cases Act – applicant charged with murder and cause grievous bodily harm with intent – joint criminal enterprise – applicant discharged by directed verdict at conclusion of evidence – application for costs – whether not reasonable for the proceedings to be instituted – principles - no further facts alleged by Crown – certificate granted

CRIMINAL LAW – open justice – suppression and non-publication orders – orders necessary to protect identity of informants – application for closure of court during the evidence of twelve witnesses – witnesses treated as a “job lot” – suggestion that members of the public be registered to gain admission to Court – anathema to recognised principles of open justice – courts should be open to ensure scrutiny – functioning democracy – evidence relating to one witness in a different category – closure of the court justified in one instance – restriction of cross-examination – disclosure of information regarding relocation of witnesses – limited restriction necessary to protect witnesses

PROCEDURE – application for leave to appeal – referral to a barrister for pro bono assistance – Uniform Civil Procedure Rules 2005 (NSW) 7.36(1) –whether leave application has prospects of success – whether in interests of justice to grant referral application – prior pro bono referrals – Uniform Civil Procedure Rules 2005 (NSW) s 7.36(2A), Civil Procedure Act 2005 (NSW) PROCEDURE – application for stay of costs order – whether basis for stay established

CONVEYANCING – notice to complete served – purchaser responsible for serving form of transfer – vendor not ready willing and able to complete by reason of inappropriately executed transfer – whether vendor entitled to terminate EQUITY – the doctrine in Tanwar Enterprises Pty Ltd v Cauchi – whether purchaser entitled to relief against termination for breach of essential time provision – relevance of vendor’s conduct

COSTS – costs of interlocutory application in proceedings – Uniform Civil Procedure Rules r 42.7 – costs of application not ordinarily payable until conclusion of proceedings – whether order should be made that costs be payable forthwith PRACTICE & PROCEDURE – remitter after appeal from determination of separate questions under Uniform Civil Procedure Rules r 28.2 – whether appropriate to order remitter to differently constituted court

CONTRACT – contract of employment – summary termination for serious misconduct – whether sufficient that employer held the opinion that misconduct had occurred or whether necessary for it to prove that misconduct did in fact occur – if dependent upon employer’s opinion, whether employer obliged to act reasonably in forming opinion CONTRACT – contract of employment – power to terminate on notice for any reason – whether employer obliged to act reasonably EVIDENCE – expert evidence – dispute between experts – relevance of demeanour DAMAGES – contract of employment – wrongful dismissal – whether but for the breach of contract the employer would have exercised its right to terminate the employment on notice for any reason – consideration of the hypothetical circumstances to be postulated

CRIMINAL LAW – sentencing – s 66C(4) Crimes Act - aggravated sexual intercourse with person aged over 14 and under 16 – objective seriousness – whether sentencing judge assessed objective seriousness by reference to offence against s 61J Crimes Act – sentencing judge refers to lack of consent when not an element of offence – need to describe surrounding circumstances of offending – finding of special circumstances – non-parole period 77% of whole sentence – need to re-sentence

Criminal law – appeal against sentence - larceny as bailee, obtain money by deception, fraudulently omit to account – consideration of delay in the sentencing exercise – whether sentencing judge erred in failing to account for delay between investigation and charging of offence

CRIMINAL LAW – sentence appeal – applicant found guilty after trial of one count of attempted robbery armed with a dangerous weapon – whether sentencing judge took into account social disadvantage of applicant – social disadvantage not adequately treated – need to re-sentence – family background taken into account – interplay of conflicting sentencing considerations – age of applicant – applicant already serving sentences for other offences – sentence reduced.

CRIMINAL LAW –offence of deemed drug supply – Form 1 offences – plea of guilty – unrepresented applicant raises issue on appeal concerning basis for guilty plea - integrity of plea – no miscarriage of justice established CRIMINAL LAW – appeal against sentence – offence of deemed drug supply – Form 1 offences –where applicant’s criminal history includes prior supply offence – importance of general and specific deterrence – sentence not manifestly excessive

CRIMINAL LAW – appeal – appeal against sentence – armed robbery – no error in assessment of objective seriousness – offence involved extensive planning – different conclusions reached by sentencing judges of co-offenders does not reveal error – assessment of “well above” the middle of the range open to be made – sentence not manifestly excessive – quoting entire victim impact statement in sentencing remarks did not represent undue regard – inadvertent misstatement of criminal history of no material consequence – lengthy sentence required despite unfortunate upbringing – appeal dismissed

CRIMINAL LAW – appeal against sentence – intentionally causing grievous bodily harm – victim impact statement – whether sentencing judge erred in assessment of victim impact statement as aggravating factor CRIMINAL LAW – appeal against sentence – fresh evidence – whether absence of fresh evidence at sentencing resulted in miscarriage of justice

CRIMINAL LAW – appeal against sentence – mental health – whether sentencing judge erred in assessing impact of mental health of offender on sentence

PROCEDURE — Interlocutory injunctions — where Plaintiffs sought interlocutory injunction preventing a mortgagee and receivers appointed by the mortgagee from taking possession of property – whether there is a serious question to be tried – whether balance of convenience warrants grant of interlocutory relief.

PROCEDURE — Interlocutory injunctions — where Plaintiff sought interlocutory injunction restraining Defendant from selling or dealing with property – where no evidence provided regarding Plaintiff’s capacity to satisfy an undertaking as to damages – where Plaintiff delayed seeking injunctive relief – whether there is a serious question to be tried – whether balance of convenience warrants grant of interlocutory relief.

PROCEDURE — Orders sought for transfer of proceedings to Family Court of Australia under s 1337H of the Corporations Act 2001 (Cth) – where the proceedings sought to be transferred were in respect of an application to set aside creditor’s statutory demand – whether it is in the interests of justice to transfer proceedings – whether transfer will avoid substantial overlap in issues with proceedings in another court – whether transfer will avoid risk of inconsistent findings.

PRACTICE AND PROCEDURE — Pleadings — Application to strike out pleadings pursuant to UCPR r 14.28(1)(b) — Application for particulars pursuant to UCPR r 15.10(1)(a) — Circumstance in which Court will entertain objection to pleadings and argument in relation to particulars — Contemporary purposes of pleadings — Pleadings enable the issues to be identified — Defendants understand the case to be met — Application dismissed

APPEAL FROM LOCAL COURT – Presiding Magistrate’s finding as to the reasonableness of the quantum of professional fees – weight to be placed on expert reports – admissions as to reasonableness of professional fees – alleged failure to provide adequate reasons.

COSTS – costs thrown away by reason of late communication of a party’s position – no question of principle

PRACTICE AND PROCEDURE – civil – lack of standing to sue – cause of action vested in trustee in bankruptcy at time of commencement – assignment of cause of action to plaintiffs after commencement – proceedings a nullity PRACTICE AND PROCEDURE – civil – amendment – proceedings not curable by amendment to plead assignment of cause of action after commencement – Civil Procedure Act 2005 (NSW), ss 64, 65 BANKRUPTCY – vesting of cause of action in trustee – no revesting upon discharge of bankrupt – Bankruptcy Act 1966 (Cth) – ss 58, 129AA, 149

PRACTICE AND PROCEDURE – joint application for determination of separate question – whether estoppel operates against defendant – whether issue should be determined prior to trial

PRACTICE AND PROCEDURE – DEFAULT JUDGMENT – Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Arts 3–6 – Interpretation Act 1987 (NSW) s 80 – Civil Procedure Act 2005 (NSW) s 17 – Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 6 r 6.9(1), Pt 11 rr 11A.1, 11A.3(1), 11A.4(1), (2), 11A.5(1), 11A.6(1), (2), (3), 11A.8, 11A.10 – service of judicial process on defendant in Italy effected by registered post by Italian Authority – certificate of service provided by Italian Authority not in the approved form under UCPR – whether substantial compliance with the approved form – whether requirements for default judgment satisfied HELD: certificate of service in substantial compliance with approved form – requirements for default judgment satisfied.

CONTRACT – building and construction – plaintiffs’ joint venture responsible for construction of project – claims brought against four defendants – first, second and fourth defendant no longer a party to proceedings – claims against those defendants remain relevant to determination of liability of third defendant CONTRACT – breach of contractual obligations by third defendant – where third defendant responsible for reviewing and reporting on suitability of designs of first and second defendants in conditions actually experienced– failure of third defendant to continually review and report on designs in the changing conditions of the project - breach of contractual obligations proved – causation also proved NEGLIGENCE – s 5O of Civil Liability Act – whether widely accepted peer professional opinion available as a defence for third defendant – expert evidence fails to support this argument – defence fails DAMAGES – apportionment of damages between first, second and third defendants – where primary responsibility allocated to first and second defendants – where all those parties caused significant, independent loss – court held third defendant liable for 1/3 of agreed damages

CRIMINAL LAW – sentence – murder – victim under age of 18 – sustained physical and psychological child abuse in months preceding death – guilty plea to some offences – very bad case of murder but not in worst case category – co-offender sentenced for lesser offences – subjective circumstances do not attract leniency – no remorse – prior good character given little weight due to seriousness of offending – denunciation, deterrence and community protection outweigh rehabilitation considerations

PRACTICE AND PROCEDURE – Costs – Offer of compromise – Whether offer was a genuine compromise – Whether order should be made for indemnity costs

Practice – application to reopen judgment – no basis shown to vary reasons or orders – application dismissed

CRIMINAL LAW – non publication orders – impending trial – orders made

CRIMINAL LAW – evidence – evidence of usual practice – admissible as evidence of what usually done CRIMINAL LAW – evidence – demonstration of usual practice – whether unfairly prejudicial – where demonstration to be short

CRIMINAL LAW – procedure – discharge of jury – where jury member related to deceased

TRUSTS – Application for judicial advice – Trustee Act 1925 s63 – deceased died in 1982 – intestacy as to substantial parts of deceased’s estate – whether judicial advice required – what judicial advice is appropriate. DOMICILE - deceased born in Queensland – deceased lived much of her life in New South Wales but moved to the United Kingdom where she was admitted into psychiatric care shortly before her death – whether deceased domiciled in New South Wales or elsewhere. ESTATE ADMINISTRATION - bequests under deceased’s will to charitable institutions - whether overpayment to University of Sydney – whether over payment made to the University by mistake - whether overpayment may be rectified by reimbursing residue of estate out of University’s estate account. TAXATION – estate has English assets liable to the payment of United Kingdom taxes - whether plaintiff would be justified in distributing the deceased’s Australian estate without regard to United Kingdom tax liabilities.

CRIMINAL LAW – detention application after guilty plea – reasonable notice – application adjourned

APPEAL FROM LOCAL COURT – refusal to grant adjournment – denial of procedural fairness – non-attendance of witnesses – appeal on a question of law – appeal dismissed.

LOCAL COURT APPEAL – application for adjournment – no question of principle.

ARBITRATION – application under s 35 of Commercial Arbitration Act 2010 (NSW) – order for enforcement of award by arbitrator – no appearance by defendant – order made – no question of principle

CRIMINAL LAW – evidence – admissibility – context evidence – relationship evidence – relevance – probative value

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - application for an interim supervision order - order opposed – consideration of factors in s 9 – defendant maintains innocence and lacks insight into offending – defendant at high risk of re-offending – unacceptable risk

CIVIL PROCEDURE – appeal from the Children’s Court regarding care orders made – appeal application dealt with by District Court judge – application for extension of time to commence appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) – Rule 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) considered – whether granting an appeal out of time would cause unfairness – held leave limited to delay – held discretion to grant leave be exercised in this instance CHILDREN – judgments and orders – application for leave for the rescission or variation of care orders under s 90 of the Care Act – children taken into care – Children’s Court orders granted parental responsibility to children’s fathers – mother sought leave to appeal for children to be restored in her care – whether or not there is a realistic possibility of restoration of a child or young person to the custody of the mother – whether there was significant change in relevant circumstances in considering leave – consideration of matters identified by mother – held mother has not demonstrated that she has full insight into her situation – held insufficient time to demonstrate consistent good parenting at the time of hearing – held none of the matters that the mother identified as being a significant change in relevant circumstances – held change in access to child as a further consideration – held further consideration needed for mother’s access to the children and contact between siblings CIVIL PROCEDURE – application for leave for the rescission or variation of care orders – conditions of grant of leave considered – whether leave to appeal may be given only to certain aspects of a care order – whether leave should be subject to conditions – whether court has power to defer on a final ruling – invitation to counsel to provide further submission – discretion to grant leave not exercised in this instance

PRACTICE AND PROCEDURE – proceedings in negligence and nuisance by property owners against Shire Council – application by Council to strike out certain paragraphs in statement of claim – application by plaintiffs to file further amended statement of claim.

PROFESSIONAL NEGLIGENCE – legal - guarantee for loan – extent of liability – security instruments – causation – whether respondent would have refused to sign guarantee had he understood it was for the full value of the loan – whether bank would have accepted lesser guarantee. EVIDENCE – Civil Liability Act, s 5D(3) – whether affidavit evidence of respondent’s understanding was admissible – affidavit evidence admitted during trial but ruled inadmissible in judgment – whether respondent’s oral evidence admissible where evidence resulted from cross-examination that would not have occurred had the affidavit evidence been ruled inadmissible at trial.

CRIMINAL LAW – Conviction appeal partially successful – need to re-sentence – 13 counts of sexual assault and supplying stupefying drugs to five young boys – reduced aggregate sentence imposed.

CRIMINAL LAW – Evidence – Admissibility of hearsay statement – Statement made by accused to daughter following his arrest – Where statement relevant to issue of duress – No unfair prejudice to co-accused or Crown – Evidence admitted

CRIMINAL LAW – Practice and Procedure – Suggested impermissible reference by the Crown Prosecutor to a gun when leading evidence from witness – Whether such reference in fact made – Whether jury should be discharged – Application to discharge jury refused