Cases and authorities

CRIMINAL LAW – Evidence – Accused charged with murder – Evidence of accused at shooting range before and after deceased’s murder – Whether evidence relevant

CRIMINAL LAW – sentencing – murder – intention to kill – sexual intercourse without consent – sentencing many years after commission of crimes – not guilty plea – young offender – vulnerable victim – offences in victim’s home – fires ignited – no remorse or contrition – fabricated narrative – no subsequent offending of same nature – consideration of comparable cases for consistency

COSTS – application for judicial review based on failure of Civil and Administrative Tribunal to provide reasons promptly – whether Tribunal should pay plaintiff’s costs of judicial review proceedings – reasons were provided in response to email from party – no reason to commence proceedings – no basis to order Tribunal to pay costs. COSTS – Suitors’ Fund – not appropriate to grant certificate in circumstances where plaintiff incurred costs as a consequence of conduct of her legal representative – no error of law of Tribunal to warrant grant of certificate

PUBLIC ASSEMBLY AND PROCESSION – proposed public assembly to commemorate Cronulla riots to be held on tenth anniversary – risk to public order high – importance of police retaining full extent of powers to deal with risk – prohibition order made

NEGLIGENCE – building and construction – where plaintiffs purchased a house that had been defectively renovated by the vendor, the first defendant – second defendant no longer a party to proceedings – where vendor had engaged an engineer, the third defendant, to carry out inspections at particular times – where vendor had also engaged the local council, the fourth defendant, to act as Principal Certifying Authority STATUTE – case against vendor – statutory warranties set out in the Home Building Act 1989 (NSW) – warranties breached NEGLIGENCE – case against engineer – whether the engineer owed a duty of care at common law to use reasonable care to avert the risk that subsequent purchasers might suffer pure economic loss – relevant authorities – requirement that purchasers must have been vulnerable – analysis of vulnerability to proceed by reference to the salient features of the relationship – assumption of responsibility and known reliance as important factors – inability to protect one’s self from harm as another important factor – where no evidence of assumption of responsibility on the part of the engineer or known reliance on the part of the purchasers – where purchasers were, to some extent, able to protect themselves – no duty of care – further finding that had a duty been owed, breach would be made out, but not causation NEGLIGENCE – case against council – similar principles to case against engineer – further principles deriving from the statutory role of Principal Certifying Authorities under the Environmental Planning and Assessment Act 1979 (NSW) – assumption of responsibility and known reliance both shown – inability for purchasers to verify quality of construction by any other means – result that the purchasers were relevantly vulnerable to the conduct of the Council – reasonable foreseeability that loss could be suffered – consequence that duty of care was owed – breach of duty proved – causation also proved DAMAGES – divergence of opinion between expert witnesses – apportionment of responsibility – where vendor had no reason to think the various contractors he engaged were not competent – where his negligence derives from statute rather than through any fault of his own – where culpability of the council, by contrast, was serious – result that council should bear the cost

PROCEDURE - urgent application for stay of execution of writ of possession – hardship – foreshadowed claim for relief from forfeiture – stay on terms to be granted

PRACTICE & PROCEDURE - correction of order under the slip rule - Uniform Civil Procedure Rules 2005 r 36.17 - order varied

DAMAGES – past and future losses – discount for vicissitudes – whether appropriate to apply rate other than 15 percent

ADMINISTRATIVE LAW – Motor Accidents Compensation Act – Review Panel decision – whether failure to consider substantial case – whether Review Panel properly or actually engaged with case that plaintiff suffered from a psychological or psychiatric response to his physical injuries – denial of natural justice

SUCCESSION – family provision – claim under Succession Act, Part 3.2 for provision out of deceased’s estate – plaintiff is daughter of deceased who died leaving a small estate in cash – deceased’s will makes no provision for the plaintiff – whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – whether an order for provision should be made under Succession Act, Part 3.2 – where estate has insufficient available assets to order family provision – where deceased entered transaction three and half years before her death transferring an estate in remainder in her only real property to her son (the plaintiff’s only sibling) and his wife – the son and his wife still hold the property so transferred to them – whether the Court should under Succession Act, Part 3.3 designate the son’s interest in property as notional estate – valuation of reversion and life interest – what constitutes a relevant property transaction – whether transfer of life interest to remaindermen upon death is a relevant property transaction – when relevant property transaction takes effect – whether deceased’s failure to set aside deed constituted a relevant property transaction WORDS & PHRASES – “relevant property transaction” – “full valuable consideration” – reasonable expectations in relation to property”

PROCEDURE – appeals – application for variation of existing stay pending appeal – whether arguable grounds demonstrated – variation of stay refused

CRIMINAL LAW – sentencing – Applicant pleaded guilty to one count of supplying a commercial quantity of a prohibited drug (methylamphetamine) - quantity just short of large commercial quantity – sentenced to imprisonment for three years and six months with a non-parole period of two years after application of 60% discount for guilty plea and assistance to authorities – whether sentence was manifestly excessive – no error demonstrated – sentence not manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal – sentencing – aggravated break and enter and armed robbery – whether primary judge erred in assessing applicant’s special circumstances – effect of “institutionalisation” – incorrect calculation of the default ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up — where evidence provided as to Company’s solvency – interests of creditors – whether to terminate winding up.

CORPORATIONS — Winding up — Application under s 482 of the Corporations Act 2001 (Cth) to terminate a winding up — where evidence provided as to Company’s solvency – interests of creditors – whether to terminate winding up.

PROCEDURE – application for stay from orders of NSW Civil and Administrative Tribunal – orders permitting defendant to conduct smoke alarm test – whether grounds are fairly arguable and whether plaintiff will lose her opportunity to appeal if stay not granted – application refused

PROCEDURE – civil – application to restrain the New South Wales Crime Commission proceeding with questioning the applicant – orders made pursuant to s 35A Crime Commission Act 2012 (NSW) to question the applicant – where applicant has lodged an appeal from the decision with the Court of Appeal – in circumstances where the questioning was to take place before the appeal had been heard

CIVIL – procedure – stay application – appeal from decision of NSW Civil and Administrative Tribunal on foot – where plaintiff found guilty of unsatisfactory professional conduct and professional misconduct by Tribunal – where protective orders have not yet been imposed by Tribunal – seeking a stay of the imposition of protective orders until appeal heard in this Court

PROCEDURE – notice of motion – proceeds of crime - restraining orders – further orders made in terms agreed –pleadings – leave sought to amend summons granted

REAL PROPERTY – caveats – whether caveat lodged or maintained without reasonable cause – whether trustee in bankruptcy of a registered proprietor has caveatable interest if property held on trust – whether caveator had honest belief based on reasonable grounds that it had a caveatable interest – Real Property Act 1900 (NSW), s 74P

ADMINISTRATIVE LAW – judicial review – apprehended bias – where plaintiff was a witness in an inquiry conducted by the Independent Commission Against Corruption – where he alleges that the Commissioner might not bring an open mind to the question of what, if any, findings to make in respect of him – applicable test of whether a fair-minded lay observer might reasonably apprehend the same – where the conduct complained consisted of numerous episodes before and during the ICAC proceedings – where no episode alone could give rise to a reasonable apprehension – result that the cumulative effect of the episodes together could not do so – where much of the conduct referable to counsel assisting, rather than the Commissioner – whether attributable to the Commissioner – where many episodes explicable by reference to context – where, in any event, no rational connection was demonstrated between impugned conduct and the allegation that the Commissioner would not bring an open mind to her task – consequence that observer could not reasonably form the apprehension suggested

CRIMINAL LAW – appeal – Local Court jurisdiction to hear and determine court attendance notices – whether service properly effected – personal service established through plaintiff’s attendance and admission of receipt and possession of notices

PRACTICE AND PROCEDURE – proceedings against solicitors for professional negligence – likely delay in matter being brought to finality – whether issues of duty and breach should be separately determined

CHURCHES AND RELIGIOUS ASSOCIATIONS – Anglican Church of Australia – Diocese of Bathurst (the Diocese) – constitution, management and powers – church property and trusts – CONTRACTS – a Diocesan corporation (the Debtor) borrowed money from a bank (the Bank) – in a letter under his signature and seal (the Letter of Comfort) the Bishop of the Diocese certified pursuant to a Church Ordinance that the Diocese undertook responsibility for the loan and also confirmed that the Diocese was committed to ensuring that the Debtor met its financial commitment to the Bank and undertook to use its best endeavours and powers conferred by legislative and other means to resolve issues which may arise with the loan – under another Church Ordinance the Debtor is guaranteed by the Diocese to the extent that should it have any deficiency in funds the Bishop-in-Council (BIC) is to promote an ordinance to levy the necessary funds from the parishes – whether the Letter of Comfort was intended to create legally binding relations – who are the parties to it – whether its terms are certain – AGENCY – whether the Bishop was authorised to bind BIC – VOLUNTARY ASSOCIATIONS – whether BIC as the management committee of the voluntary association which is the Diocese is liable to perform obligations undertaken in the Letter of Comfort – CHURCH LAW – whether certain ordinances (including the Ordinance under which the Debtor’s deficiency is guaranteed) are binding as between BIC and the Bank and BIC and ADF – whether Certificates given by the Bishop are legally binding – STATUTORY CONSTRUCTION – Supreme Court Act s 65(1) – whether BIC owes an enforceable duty to the Bank in which it is personally interested – EQUITY – trusts and trustees – church trust property – whether there exists church trust property accessible to BIC to discharge its obligations – RELIEF – appropriate relief

APPEAL – where ultimate challenge, if successful, would amount to an adjustment of well less than $100,000 – matter treated as application for leave to appeal – no matter of principle or public importance – no prospect of success of proposed appeal

BAIL – application – where applicant charged with sexual assault and murder of a two year old – whether the applicant has shown cause why his detention is not justified

CONTRACT – plaintiff proprietor engaged defendant builder to carry out works – where each party claims to have validly terminated the contract – application of the terms of the contract to the events that occurred – where the contract included an amended schedule of payment – where the builder issued invoices in accordance with that schedule – where the proprietor refused to pay – whether formal non-compliance of invoice with terms of contract entitled proprietor to take that course – where that provision was facultative not prescriptive – consequence that non-payment amounted to a breach – result that builder validly issued, in response, a contractual notice of suspension of works – where proprietor later re-took possession of the site – result under terms of the contract that practical completion occurred – consequence that later purported termination by plaintiff invalid – further consequence that defendant was entitled to treat the purported termination as repudiation, and to itself validly terminate the contract validly – result that builder entitled to succeed in its cross-claim for damages EVIDENCE – expert evidence – whether works carried out by builder were defective – where they complied with the terms of the contract – where alleged defects frequently related to future works that builder had not yet been required to perform – result that allegations of defective work not made good – consequence that plaintiff not entitled to damages

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

CONTRACT – where defendant employed as property manager in real estate agency – where employment agreement included obligations in respect of confidential information – whether defendant in breach in poaching clients, setting up business in competition and misusing confidential information whilst still employed with plaintiff. RECTIFICATION – where post-employment restraint in original contract of 6 months and 15 kilometres from office – where new contract included different restraint – 12 months in area not including the relevant office - whether mistake – whether agreement should be rectified.

CRIMINAL LAW – evidence – hearsay - whether exception applies - Evidence Act 1995

CRIMINAL LAW – sentence – murder – plea of guilty – whether offence premeditated – many irrational aspects – offence committed in public place – slightly below mid-range of objective seriousness – offender’s difficult past – good prospects of rehabilitation

DEFAMATION – defences – defence of contextual truth – Defamation Act 2005 (NSW), s 26 – whether contextual imputations capable of arising – whether capable of arising “in addition to” plaintiff’s imputations

PRACTICE – summary dismissal – application for leave to appeal – order preventing re-litigation of the same cause of action without leave – whether fresh proceedings within scope of order – no error in decision of primary judge – no explanation for why leave not sought

TORTS – assault – damages – whether award of aggravated and/or exemplary damages justified – whether a ‘cushion’ for future economic loss should be awarded - applicable principles – quantum of aggravated and exemplary damages

CRIMINAL LAW – sentence appeal – murder – sentencing on the basis of participation in extended joint criminal enterprise – appellant a getaway driver not present at the scene of murder – whether sentencing judge properly assessed the culpability of driver – assessment of objective seriousness of the offending – whether assessment of objective seriousness of offending within the range properly available to sentencing judge – comparison of sentences between co-offenders – whether proper effect given to principle of parity – relevance of young age and no antecedents to finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIMINAL LAW – bail application

CIVIL – evidentiary statement of plaintiff – objection to statement standing as evidence in chief – where no direction made under r 31.4 UCPR – whether Practice Note CL5 stands as a direction for purpose of the rules – application of just, quick and cheap principles CIVIL – evidentiary statement of plaintiff – objection to statement standing as evidence in chief – exercise of powers to control proceedings whether evidence should be given orally – where there is substantial issue as to plaintiff’s credit

LOCAL COURT APPEAL – Security of Payment Act – plaintiff paid out on judgment debts derived from registration certificates – defendant had in meantime contracted to complete work and received payment for work subject of progress payments that led to adjudication certificates – double satisfaction or compensation – restitution – scope of s 32 of the Security of Payments Act – appeal allowed.

HIGH RISK OFFENDER – application for extension of interim supervision order – consent orders made in terms agreed

CIVIL – review – plaintiff ordered by New South Wales Crime Commission to answer questions at hearing – plaintiff refused on basis of privilege against self-incrimination constituting a “reasonable excuse” under s 25 of the Crime Commission Act 2012 (NSW) – whether witness may decline to answer questions merely because answers can be provided to investigating police

PROCEDURE – remittal of matters ordered by Court of Appeal – whether claim for quantum meruit in respect of work done in conduct of proceedings was remitted to be determined at further hearing. PROCEDURE – summary dismissal – where quantum meruit claim relating to work done by invalidly appointed administrator – whether claim such as to justify summary dismissal.

DEFAMATION – pleadings – problems caused by complexity – extent of the Court’s authority and ability to force simplicity on the parties – where plaintiff had previously made a concession aimed at simplifying the issues in the proceedings – where subsequent argument brought forward by different counsel for defendants revealed unfairness to plaintiff of being held to the concession

CONTRACT – commercial lease – rent review – whether determination by valuer made in accordance with contract – lease provided that the lessee must spend a minimum of $1,000,000 on “Fitout Work” – whether the lease’s requirement that the valuer disregard the value of the tenant’s “fitout” required the valuer to disregard the value of the work to be done by the lessee in the future under the minimum spend obligation – whether the valuer did in fact disregard the value of that work

COURTS – jurisdiction – common law offence of misconduct in public office – former member of Legislative Council charged – application to quash indictment – whether Supreme Court of New South Wales has jurisdiction – whether effect of parliamentary privilege was to deny jurisdiction – Constitution Act 1902 (NSW) ss 13A, 14A – whether jurisdiction should be determined before other submissions CRIMINAL LAW – common law offence of misconduct in public office – elements of offence – whether extends to members of Parliament – whether extends to conduct connected to member's public office – relevance of failure to bring prosecutions – R v Quach [2010] VSCA 106; 201 A Crim R 552 considered PARLIAMENT – powers and privileges – Legislative Council of New South Wales – whether powers and privileges coextensive with House of Commons – Bill of Rights 1689, art 9 – Constitution Act 1902 (NSW) ss 13A, 14A

CRIMINAL LAW – appeal against convictions – Appellant convicted of a number of property offences – Crown case based entirely on CCTV footage – jury invited to compare person depicted in CCTV footage with photographs of Appellant – significant difficulties with quality of CCTV evidence – Crown concedes errors in trial and that verdicts were unreasonable – Court holds that verdicts were unreasonable and not supported by the evidence – appeal allowed, verdicts and sentences quashed and verdicts of acquittal entered

PROCEDURE – application for joinder of beneficiary to proceedings – Court’s general disinclination to join beneficiaries to proceedings – circumstances in which joinder warranted – greater likelihood of joinder where beneficiary receives substantial benefits likely to be disturbed by family provision order – whether applicant justified in having lost confidence in executor’s conduct of proceedings – where joinder would be at applicant’s own risk as to costs.

CRIMINAL LAW – bail – whether applicant for bail required to show cause under Bail Act 2013 (NSW) – definition of “serious personal violence offence” – whether conviction for an offence which is no longer in the same terms and has been renumbered attracts the show cause requirement CRIMINAL LAW – offence of kidnapping – nature and effect of changes in 2001 – whether s 90A, 85A and 86 amount to the same offence for the purposes of the definition of “serious personal violence offence” STATUTORY INTERPRETATION – effect of Interpretation Act 1987 (NSW) – ambulatory nature of provisions – relevance of legislative purpose – use of present tense to be examined in context – effect on definition of repeal and remaking of offence – whether contrary intention established to displace effect of ss 5 and 68 of Interpretation Act

CIVIL LAW – enforcement of judgments – examination orders – application for examination order to be set aside – whether failure to make full and frank disclosure at the time of ex parte application for examination order – whether legitimate forensic purpose for documents sought under examination order –examination by judgment creditor is not analogous to liquidator’s examination – no material non-disclosure in present case – examination for a proper purpose – application dismissed