Cases and authorities

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act 2001 (NSW) – doubt or question as to mitigating circumstance

CIVIL PROCEDURE – application to strike out pleadings – whether pleadings disclose a viable cause of action – justiciability of claims – decisions of voluntary religious organisation – whether Towards Healing protocols of the Catholic Church give rise to enforceable civil rights – justiciability of claims concerning canon law – justiciability of natural justice claim

CIVIL PROCEDURE – application for proceedings to be heard together – separate proceedings currently in equity division and common law division – whether there is sufficient commonality

PROCEDURE – Supreme Court procedure – Procedure under Uniform Civil Procedure Rules and other rules of court – Evidence - Subpoenas - Case management – Competing applications for administration of deceased’s estate – Contest about size and composition of deceased estate – Availability of processes for compulsory production of documents

JUDICIAL REVIEW – criminal conviction – dismissal of appeal by District Court – whether jurisdictional error in District Court – whether knowledge of allegation involved acceptance by court – whether judgment given for an improper purpose in bad faith

JUDICIAL REVIEW – criminal convictions – dismissal of appeal by District Court – whether procedural unfairness in District Court – whether constructive failure of District Court to exercise jurisdiction – whether complaints as to fact-finding engaged jurisdictional error

HUMAN RIGHTS – discrimination – homosexual vilification – two public acts – verbal conduct and later physical assault several days apart – whether ordinary member of the class to whom the later public act is directed assumed to have knowledge of the earlier public act – whether such an assumption required as a matter of law by ss 49ZS and 49ZT of the Anti-Discrimination Act 1977 (NSW)

ADMINISTRATIVE LAW – Civil and Administrative Tribunal NSW – appeal on question of law – application for reinstatement of registered medical practitioner – whether Civil and Administrative Tribunal NSW had jurisdiction to make orders dismissing application – whether Civil and Administrative Tribunal NSW had jurisdiction to make orders precluding application for two year period ADMINISTRATIVE LAW – Civil and Administrative Tribunal NSW – appeal on question of fact – challenge to findings regarding credibility of expert witness

CORPORATIONS – management and administration – orders sought for modification of operation of Corporations Act s 443A for limitation of company’s and administrators’ personal liability in respect of relevant borrowings – whether interests of company’s creditors best served by administrators’ actions – whether creditors of company are prejudiced or disadvantaged by orders sought.

COSTS – judicial review of CARS assessment – plaintiff insurer successful – only successful on limited grounds – plaintiff recover 40% of its costs – Suitors’ Fund Act – whether CARS assessor is a “court” – whether judicial review proceedings are proceedings by way of appeal.

REAL PROPERTY – application for writ of restitution – steps taken by defendant to subvert writ of possession – leave granted for the issue of writ of restitution to restore the plaintiff's possession of the land

PROCEDURE – pleading – proposed amended statement of claim – pleading in the alternative – whether inconsistent pleading – alternative pleading in the event certain defence evidence is accepted – whether alternative pleading is known by pleader to be false – pleading allowed

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act 2001 (NSW) – second s 78 application – Muldrock error – Form 1 offences – doubt or question as to mitigating circumstance

LANDLORD AND TENANT – development approval – landlords and tenant were required to do all things necessary to obtain council development approval – both parties alleged the other was in breach of undertaking or court order – whether the tenant was required to lodge an appeal from a deemed refusal of its application for development approval – whether the landlords should be restrained from doing anything that may have the effect of delaying, frustrating or otherwise hindering the development approval process – where landlords had consented to the tenant’s application for development approval but had also lodged objections to the application – both applications dismissed

COSTS – defendants wholly successful – application by plaintiff that there be no order as to costs – costs ought follow the event – no basis for different order – no question of principle

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road. LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’.

APPEAL – appeal against decision given by the Legal Profession Admission Board – refusal of certificate – guilty plea to an offence under s 135.2(i) of the Criminal Code (Cth) – role of the Law Society – amicus curiae – credibility – scheme of the Legal Profession Uniform Law Application Act 2014 (NSW) – fit and proper person to be admitted to practice in New South Wales – 2009 offending – failed application for admission in Northern Territory – good fame and character – plaintiff found to be fit and proper person to practice law – appeal allowed

CIVIL PROCEDURE – medical negligence claim – application to extend limitation periods – application to join second defendant – application for first defendant to make an interim payment

DEFAMATION – pleading – application to strike out defence – unrepresented defendant - second application to strike out– failure of defendant to comply with rules relating to pleading defences to defamation proceedings – inclusion of evidence in defence – reliance on reasons for judgment contrary to s 91 Evidence Act – whether defendant should be permitted to re-plead – failure to comply with earlier judgment on strike-out application – making of scandalous and irrelevant allegations – defendant refuse leave to re-plead

PRACTICE AND PROCEDURE – consent judgment – setting aside consent judgment – grounds for setting consent judgment aside – irregularity, illegality or lack of good faith – circumstances in which consent judgment was entered – conduct of the parties

Liability of appointor of receivers and managers for their fees – Whether effectively capped by Deed of Appointment - Receivers’ lien - Only extends to a fund over which the receivers have contributed in the care, preservation and realisation of assets

DEFAMATION – damages – where no defence maintained – where defendant harassed plaintiff over two year period

INDUSTRIAL LAW – personal injury – where plaintiff injured when manually restacking goods in his prime mover – whether plaintiff was owed a duty by the defendant to assist him with that task – whether defendant entitled to do nothing

TRUSTEE ACT – Section 63 – judicial advice regarding ‘interpretation of trust instrument’ – competing opinions – proper approach – whether appropriate to give advice

TORTS – motor accident compensation – blameless accident – kangaroo collides with motor cycle in the outback – only in Australia – statutory interpretation – whether driver can claim under no fault scheme – whether injuries occasioned by a “blameless motor accident” – whether plaintiff’s act or omission caused the accident – statutory modification to the concept of causation – where defendant not required to establish that plaintiff at fault – statutory definition of fault – whether riding a motor cycle constituted an act or omission – whether excessive speed an act that caused the accident – whether failure to observe kangaroo an omission that caused the accident

INDUSTRIAL RELATIONS – workplace injury – receipt of both compensation under the Workers Compensation Act 1987 (NSW) and work injury damages – application for reinstatement – whether a person who has obtained work injury damages is thereafter precluded from seeking reinstatement – Workers Compensation Act, Pt 8 STATUTORY INTERPRETATION – use of present tense – meaning of “injured worker” – Workers Compensation Act, s 240(2) – whether the present tense (“is entitled to receive compensation under this Act”) connotes a temporal element

APPEALS – finding that defendants’ witnesses had fabricated evidence – obligation to give reasons – trial judge failed to give reasons – retrial ordered PERSONAL INJURY – statutory liability for bodily injury caused by dog – Companion Animals Act 1998, s 25 – occupiers liability for negligence – whether evidence capable of sustaining finding of negligence by occupier who was not present at time of attack

CRIMINAL LAW – appeal against sentence – two offences of ongoing supply of prohibited drugs – supply during same period but of different drugs - primary judge accumulated sentences by three years – additional criminality in second offence not substantial – accumulation excessive

CRIMINAL LAW – sentence appeal – 11 counts of murder - 11 life sentences – whether sentencing judge erred in adopting a two-stage approach to sentencing for murder – whether two-stage approach impermissible after Markarian and Muldrock– whether sentencing judge erred in concluding it was not possible adequately to reflect culpability by any lesser penalty than life imprisonment – whether sentence manifestly excessive

CRIMINAL LAW – indecent assault – act of indecency – appeal against conviction – whether a miscarriage of justice occurred as a result of trial judge’s direction to the jury – whether trial judge’s direction contravened the principles in Black v R [1993] HCA 71; 179 CLR 44 – whether trial judge’s direction placed undue pressure on the jury to reach a decision - whether trial judge encouraged jurors to agree to compromise verdicts

CRIMINAL LAW – sexual assault – appeal against conviction – alleged incompetence of counsel – whether significant possibility that incompetence affected outcome of trial – failure to adduce good character evidence before jury – failure to seek direction as to good character – good character evidence shown to be available – no explanation for course taken – concessions by Crown accepted – appeal allowed, conviction quashed and retrial ordered

CRIMINAL LAW – appeal – application under r 50C of the Criminal Appeal Rules

SENTENCE APPEAL – applicant robbed passenger on a public train by cutting his throat – applicant on parole at time of offence – significant criminal record – sentence of eleven years with non-parole period of eight years and three months – offence of robbery while armed and inflict grievous bodily harm – standard non-parole period of seven years imprisonment – whether sentencing judge erred in assessment of objective seriousness – whether judge erred in using similarity with previous offence to determine whether offence was planned or premeditated – whether breach of procedural fairness by sentencing judge – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Tobacco importation – defrauding the revenue – substantial participation – full time custody required

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where child has given consent to adoption – weight to be ascribed to child’s consent – where child settled in placement with proposed adoptive parent and has developed familial and psychological ties with adoptive parent – where child has made significant progress while in placement with adoptive parent – where birth mother’s mental illness compromises parenting capacity – where no realistic prospect of restoration of child to care of birth parents – suitability of proposed adoptive parent – whether proposed adoptive parent supportive of birth mother contact – where supervision of contact by adoptive parent objected to by birth mother – registration of adoption plan – where amendments made to adoption plan during course of hearing – whether adoption plan appropriate and suitable to child’s needs and parties understand and freely enter into it - where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – where not making an adoption order would compromise child’s emotional and psychological development – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – whether proposed name change in best interests of child – where changing last name would reinforce child’s membership of adoptive parent’s family.

COSTS – No issue of principle

COSTS – indemnity costs – where proceedings stayed for abuse of process

EQUITY – equitable relief – production of accounts – where defendant ordered to produce an account in common form – where defendant had failed to produce an account – where defendant had failed to produce primary documents for purposes of accounting – whether plaintiffs may themselves produce accounting.

PRACTICE AND PROCEDURE – court appointed referral for legal assistance – pro bono panel – whether referral in the interests of the administration of justice – application granted

PRACTICE AND PROCEDURE – default judgment – defendant failed to file defence within time prescribed and further time permitted by Court – failure to appear - default judgment against the defendant ordered

CRIMINAL LAW – proceeds of crime – application for restraining order – reasonable grounds for suspicion that funds are proceeds of indictable offence – custody and control orders

CRIMINAL LAW – application for leave of Court to take evidence from accused person under s 35A Crime Commission Act 2012 (NSW) – potential prejudice to trial of defendants outweighed by public interest in full investigation by Commission

PROCEDURE – Application by Crime Commission under s 35A of the Crime Commission Act 2012 (“the Act”) for leave to examine an accused person about the subject matter of the offences charged or to require an accused person to produce documents or things to the Commission – Whether supporting evidence establishes requisite belief and suspicion under s 35(4) of the Act and the grounds on which the belief and suspicion is based – Whether any prejudicial effect likely to arise to the person’s trial from the proposed questioning or requirement is outweighed by the public interest in using the Commission’s powers to ensure that a matter referred to in the copy of a notice accompanying a summons issued to the person is fully investigated – Analysis of the statutory requirements under s 35A before the Supreme Court may grant leave under s 35A(5) of the Act – Satisfied that public interest in this case outweighs any likely prejudicial effect – Leave granted to the Crime Commission to question the defendant under s 24 of the Act – Leave granted to the Crime Commission to require the defendant to produce a document or thing in relation to matters relating to the subject matter of the charged offences under ss 24 or 29 of the Act – Orders made under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW).

CRIMINAL LAW – trial by judge alone – manslaughter – killing by a single stab wound – self-defence – main issue whether accused’s conduct was a reasonable response to the circumstances as he perceived them

CRIMINAL LAW - murder - jury trial - application for trial by judge order - adverse publicity - where some increased cost and delay likely - where pre-trial publicity following committal arguably prejudicial to the accused - where accused’s involvement with drugs and firearms said to be likely to cause additional prejudice - whether in the interests of justice for trial by judge alone

REAL PROPERTY – Torrens system – indefeasibility – mortgages – forgery of one co-owner’s signature by other co-owner – no knowledge of fraud by mortgagee – whether mortgagee entitled to possession of land against both co-owners – whether liability of co-owners joint or joint and several – whether standard memorandum incorporated into mortgage – variation of mortgage – whether new contract – mortgagee entitled to possession

WILLS, PROBATE AND ADMINISTRATION – EQUITABLE REMEDIES – account – financial managers – whether deceased’s financial manager is liable to account to the executor of the deceased’s estate – where the NSW Trustee and Guardian had directed the financial manager pursuant to the NSW Trustee and Guardian Act 2009 (NSW) to keep records of payments – where the financial manager had used the deceased’s assets to make up a ‘purse’ for himself – held, distinguishing Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417, that the financial manager is liable to account

EVIDENCE – documents – production of documents –production required by Plaintiffs in support of their case - public interest immunity – matters of state - three stage test – whether appropriate to permit document to be made available to Plaintiffs’ or their lawyers on a confidentiality basis – document material but not critical to Plaintiffs’ case – public interest immunity upheld

APPEALS – application for leave – interlocutory application for criminal justice stay warrant – whether reasonable prospects of success – leave refused

COSTS – application for costs by plaintiff who was successful in appealing Bar Association’s deemed refusal under s 48(13) of the plaintiff’s application for a barrister’s practising certificate – Bar Association in principal proceedings had failed to establish serious allegations against plaintiff to the requisite standard – Bar Association had not proved that the plaintiff was not a fit and proper person to hold a practising certificate – Bar Association was a proper contradictor – public interest question involved in the proceedings – Bar Association was required to assume the burden of gathering evidence which was not volunteered by the plaintiff – appropriate order in those circumstances is that each party should pay own costs