Cases and authorities

COSTS – application for certificate under Suitors’ Fund Act – application refused

CRIMINAL LAW – EVIDENCE – admissibility of evidence – evidence of past threats against deceased – prejudice to the Crown – undue waste of time – relevance

PRACTICE AND PROCEDURE – application for summary dismissal – plaintiff seeks declarations in respect of validity of motions passed by political association – whether declarations could have utility – held, dismissing the application, that it is reasonably arguable that the declarations would have utility

CRIMINAL LAW - Crown seeks to adduce evidence from paediatrician concerning her use of distracting or dissociate techniques when examining children - evidence allowed - Crown seeks opinion from paediatrician concerning C1’s account of alleged use of distracting or dissociative techniques prior to alleged FGM offence upon C1 - evidence disallowed

PRACTICE AND PROCEDURE – application for joinder – whether a third party should be joined as a party to proceedings in the Supreme Court – whether the joinder is necessary to the determination of all matters in dispute – application dismissed

CORPORATIONS – winding up – application based on failure to comply with creditor’s statutory demand – where the debt the subject of the statutory demand was a judgment debt of the Supreme Court of Queensland – where payments were paid into Court as security for costs exceeding the demand amount – whether demand complied with because the sum was paid, secured or compounded to the reasonable satisfaction of the Plaintiffs. CORPORATIONS – winding up – standing to bring winding up application – where creditors who brought application were judgment creditors – where Defendant argued that the amount the subject of the demand was effectively paid as a result of a court ordering payment of that debt – whether the Plaintiffs have standing. CORPORATIONS – winding up – abuse of process – where Defendant argued the winding up application was a collateral attack on orders of the Supreme Court of Queensland – whether application to wind up the company an abuse of process or brought for an improper purpose.

PROCEDURE – judgment and orders – interest after judgment – monetary orders made in favour of plaintiff in substantive proceedings – whether the date upon which interest after judgment commences should be varied COSTS – apportionment of costs – defendant successful on some but not all of the issues litigated at the substantive hearing – whether the plaintiff should pay a proportion of the costs of the defendant

COSTS – Plaintiff unsuccessful in claim for family provision order – Plaintiff not present when reasons for judgment delivered – Defendant prepared to bear her own costs of the proceedings – Order made that there be no order as to the Defendant’s costs to the intent that she will bear her own costs – Whether Plaintiff seeks any order for costs out of the estate or notional estate not known – Plaintiff was litigant in person at hearing – Opportunity given to her despite non-appearance to make any application for costs by notice of motion filed by 30 October 2015

PRACTICE AND PROCEDURE – Application for transfer of proceedings seeking damages for personal injury from the District Court to the Supreme Court – Whether likely that the plaintiff’s damages would exceed the jurisdictional limit of the District Court – Significant delay on the part of the plaintiff in bringing the application – Failures on the part of the plaintiff to comply with orders of the District Court requiring her to serve medical evidence and particulars - Relevance of procedural history to the exercise of discretion – Summons dismissed

PRACTICE & PROCEDURE – Self-represented Plaintiff at the hearing – On occasions prior to hearing, Plaintiff had legal representation – Duty of the court to ensure fair hearing – Applications for an adjournment made by the Plaintiff – Applications refused SUCCESSION – FAMILY PROVISION – The Plaintiff, a child of the deceased applies for a family provision order under Part 3.2 of the Succession Act 2006 (NSW) – The Defendant, the executor of the Will of the deceased and mother of the Plaintiff – Probate not granted although application for grant recently made – Defendant the sole beneficiary named in Will – Estate consisting of cash and shares wholly distributed despite no grant of Probate – Jointly held property transmitted to the Defendant – Notional estate orders sought regarding property in which the deceased was a joint tenant with the Defendant – Extension of time for making Plaintiff’s application required as proceedings commenced outside the time prescribed by the Act – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Whether order designating property as notional estate should be made – Whether requirement to establish special circumstances – Nature and quantum of provision, if any, that ought to be made for the Plaintiff

CRIMINAL LAW – appeal against sentence – wounding with intention to cause grievous bodily harm – whether manifest excess – comparable sentences

COURTS – jurisdiction – supervisory jurisdiction of superior courts – whether supervisory jurisdiction impliedly excluded by specific right of appeal - Local Government Act 1993 (NSW), ss 574, 674 – Land and Environment Court Act 1979 (NSW), s 20 CHARITABLE TRUST – whether providing housing for low income persons charitable – whether providing training, vocational and skills development charitable LOCAL GOVERNMENT – rating – exemptions – whether landowner was a public charity – whether landowner used or occupied land for charitable purposes – Local Government Act 1993 (NSW), s 556(1)(h) STATUTORY CONSTRUCTION – whether specific right of appeal impliedly excluded general right conferred by same statute to restrain breaches – qualifications in other provisions of statute told against implication – provisions were complementary not conflicting

CRIMINAL LAW – appeal – sentencing – mistaken application of Crimes (Sentencing Procedure) Act 1999 (NSW) in sentencing for offence under s 302.3 of the Criminal Code Act 1995 (Cth) by primary judge – error in finding “special circumstances” and failing to explain sentence in accordance with s 16F(1) of the Crimes Act 1914 (Cth) indicative of mistaken application of NSW legislation CRIMINAL LAW – appeal – re-sentencing pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) – application of s 16A(2)(p) of the Crimes Act 1914 (Cth) – probable effect of sentence on person’s family – whether only “exceptional hardship” on offender’s family can be taken into account upon sentencing

CRIMINAL LAW – evidence – admissibility of prior statements of witness to re-establish credibility – s 108 Evidence Act – where evidence in statements already before the jury – evidence not relevant – evidence inadmissible

DEBT – director of defendant also director of plaintiff – plaintiff company in liquidation – paid out defendant’s debt under guarantee – debt secured by mortgage from defendant – plaintiff took assignment of debt from creditor – whether prior to liquidator’s appointment director bound both companies to an agreement for plaintiff to assume principal debt – agreement not made out.

SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration –Construction and effect of testamentary dispositions – Ascertainment of testator’s intention – Layman’s will predicated on prior professionally drafted will – Effect of revocation clause in layman’s will – Layman’s will intended to operate as codicil to professionally drafted will – Testator’s intention given effect

CRIMINAL LAW – appeal - sentencing – discount for guilty plea – resentencing where primary judge erred in calculation of discount for guilty plea

CRIMINAL LAW – appeal – r 50C Criminal Appeal Rules – application to set aside judgment refusing an application to set aside judgment which refused an application to set aside a judgment – application vexatious – application dismissed

ADMINISTRATIVE LAW - judicial review of refusal of the District Court to make an order under s 32 of Mental Health (Forensic Provisions) Act 1990 (NSW) – review limited to jurisdictional error – primary judge entitled to give consideration to operation and effect of an order under s 32 – open to the primary judge to take into account and give weight to the need for general deterrence in deciding whether to make an order under s 32 MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 – matters relevant to considering whether to make order – operation of possible condition – matters relevant to sentencing according to law

PROCEDURE – dismissal of proceedings for want of prosecution – application for leave to appeal – where applicant under legal incapacity – where delay in appointing tutor – where concurrent hearing vacated – where further delay in appointment tutor

BIAS – apprehended bias – pre-judgment – conflict of interest – member of a panel conducting inquiry had prior involvement in the events relating to the inquiry – recusal application refused – whether member’s interests logically connected with the inquiry – whether evaluative judgement by the panel required JUDICIAL REVIEW – application for judicial review of decision of stewards’ inquiry under Harness Racing Act 2009 (NSW) – applicants independently invoked statutory right of appeal to Racing Appeals Tribunal – whether appeal to the Racing Appeals Tribunal exclusive remedy – whether judicial review available – whether relevant to discretionary refusal of relief GAMING AND RACING – harness racing – disciplinary offences – presenting a horse for a race not free from prohibited substances – elements of the offence established by two valid certificates indicating presence of prohibited substance – whether honest and reasonable mistake of fact available – utility of authorities relating to criminal offences – Australian Harness Racing Rules, r 190 STATUTORY INTERPRETATION – rule-making power of Harness Racing NSW – scope of the power to create offences – whether presumption that defence of honest and reasonable mistake of fact available – whether adoption of an absolute liability offence within power – Harness Racing Act 2009 (NSW), ss 10, 22, 23

PROCEDURE – evidence by audio-visual link – where witness unable and unwilling to appear in Sydney for cross-examination – where witness willing to appear by audio-visual link from Singapore – Court’s power to issue compulsory process to person outside jurisdiction – enforceability of compulsory process in other jurisdictions – taking evidence on commission as alternative method – where audio-visual link preferable as a matter of economy and Court’s ability to evaluate evidence.

COSTS – exceptions to the general rule that costs follow the event – multiple issues – partial success – each party to bear his or its own costs

CRIMINAL LAW - procedure – murder – fitness to be tried – “Presser” principles – accused unfit to be tried

CRIMINAL LAW – pre-trial issues – admissibility of evidence – flight evidence – application of principles as to evidence of flight as evidence of consciousness of guilt – whether unfair prejudice that outweighs probative value of the evidence under s 137 Evidence Act 1995 – evidence of photographs of accused posing with weapon found on accused’s phone – evidence of knife found in location to deceased not admissible – nothing to link knife to stabbing – evidence of note found – whether an admission against interest – evidence as to photographs and note admitted.

PROCEDURE – civil – application for leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal under s 83(1) of the Civil and Administrative Tribunal Act – application by defendant to have the question of leave heard and determined separately from a hearing on the merits of the appeal – issues arising concerning Notices to Produce served by plaintiffs seeking particular documents which were not disclosed to them because of the operation of ss 15(6) and 29(3) of the Security Industry Act 1997 – held that plaintiffs not entitled to access the documents sought – documents not relevant to issues arising in the appeal – decision of Appeal Panel primarily concerned with interpretation of the relevant provisions – held that leave should be determined separately from the substantive appeal – plaintiffs had not established that a grant of leave was more probable than not – length of proceedings before Appeal Panel and likely length of hearing in this Court also relevant to determination that leave should be heard separately

ADMINISTRATIVE LAW – judicial review – decision of Review Panel and individual medical assessor under Motor Accidents Compensation Act 1999 – causation of injury – error of law in making of finding without evidence –jurisdictional error in asking wrong question and applying wrong test of causation – using perceived absence of contemporaneous complaint or diagnosis as determinative of causation

Costs – interest – pre-judgment interest – defendant provided schedule with calculations as to interest payable on judgment sum in respect of paid professional costs and disbursements including on costs paid for the costs assessment process under the Legal Profession Act 2004 – no objection by plaintiff – order made for interest to be paid by the plaintiff in accordance with the defendant’s calculations.

STATUTES - acts of parliament - operation and effect of statutes – proper construction of s 49(3) of the Proceeds of Crimes Act 2002 (Cth) – whether motions fell within s 49(3) CIVIL LAW – proceeds of crime – forfeiture order – whether cash was the proceeds or instrument of an offence under s 400.9 of the Criminal Code (Cth) – cash was the proceeds of a s 400.9 offence – cash was the instrument of a s 400.9 offence - whether motion filed had been withdrawn for the purposes of s 49 of the Proceeds of Crime Act 2002 (Cth)

APPEAL – Appeal from decision of Magistrate – Where plaintiff appealed to Local Court against defendant’s refusal of an application to annul an enforcement order – Where plaintiff denied receipt of notification of refusal – Where Magistrate’s reasons inferred rejection of plaintiff’s denial – Where no reasons given – Where defendant conceded that the appeal should be allowed and matter remitted

CONTRACT – claim for payment of debt in respect of unpaid invoices – where plaintiff provided cleaning services to defendant under contract – formation of the contract – whether formed by way of a written offer by plaintiff and acceptance by defendant, or, by written counter-offer by defendant and acceptance by conduct of the plaintiff – effect of an admission by the plaintiff of the latter version of formation – construction of the contract – whether particular cleaning services were within the scope of the ‘regular’ services to be performed or fell outside the scope and were performable only for an additional fee – whether defendant’s general terms and conditions were incorporated into the contract – whether services performed to the required standard – whether certain services which had been paid for were performed at all ESTOPPEL – conventional estoppel – whether parties conducted their relationship on the mutual assumption that the plaintiff would be paid additional remuneration for the contested services DAMAGES – economic loss sustained by defendant in respect of the overarching contract with its principal – whether that loss sustained by reason of the failure of plaintiff to provide extra services without additional remuneration, or by defective performance of those services PRACTICE & PROCEDURE – admissions – application to withdraw refused – whether court may, in any event, decide the question of contract formation on all the evidence, contrary to the pleaded admission – where doing so would work substantial injustice to the other party – whether the evidence supporting the alternative conclusion not persuasive

APPEAL – appeal and cross-appeal from Local Court – offences under Liquor Act 2007 – interpretation of licence conditions – meaning of ‘nightclub’, ‘residential premises’ and ss 66 and 69 of the Liquor Act 2007

APPEAL – local court judgment granting law practice relief from client for unpaid legal fees – whether pleadings insufficient – whether compliance with costs disclosure requirements in s 309 the Legal Profession Act 2004 – consequences of failure to comply with disclosure requirements results in s 317 of the Legal Profession Act 2004

INSURANCE – Subrogation – effect of Deed of Release on rights of subrogation - Duty of utmost good faith – distribution of funds recovered from defaulting borrower – whether plaintiff in breach of duty of utmost good faith by seeking to rely on Deed of Release – whether breach of the duty of utmost good faith to propose that insured execute Deed of Release without explicitly drawing to insured’s attention the fact that the deed altered insured’s rights of subrogation CONTRACTS – general contractual principles – construction and interpretation of contracts – construction of Deed of Release – clause dealing with the allocation of any money recovered from a third party – whether reference to “any funds received” must be read as a reference to any funds received in respect of a loss in respect of which insured received an indemnity from insurer

PERSONAL PROPERTY – other cases – dispute among former business partners as to entitlement to fit-out and stock held at retail store owned by a company controlled by one of the partners – whether fit-out and stock was partnership property – no questions of principle

APPEAL – appeal to the Court from Local Court – grounds of appeal – whether a ground alleging the magistrate allowed lawyers to fail to comply with s 56 Civil Procedure Act should be struck out – whether an error of law – whether vexatious and embarrassing – ground struck out

CIVIL LAW - workers compensation insurance – requirement for employer to hold current policy – debt or civil penalty arising from failure of employer to hold policy – relevant limitation period – appeal against decision of Magistrate – whether action constituted “proceedings for an offence” – whether Magistrate so found – submission that Court bound by purported finding – submission rejected – combative approach to litigation – whether notice of contention should be permitted – conflicting versions of conversations between counsel – when cause of action accrued to the Authority – ambiguity in legislation - agreement that Magistrate had erred - rare and refreshing moment of concurrence – appeal allowed

CONTRACT – construction – variation of contract – commercial agreement - whether convertible notes were converted at the rate specified in the terms of issue or whether the parties “otherwise agreed” to convert the notes on a $1 to 1 note basis – whether borrowing to raise funds to redeem convertible notes fell within the definition of “organic debt” in the terms of issue EVIDENCE – admissibility – contractual construction – extrinsic material - pre-contractual negotiations - whether evidence of prior negotiations was admissible to demonstrate the manner of calculation of the exercise price in a put option agreement

PROCEDURE – application to discharge stay order made by Court of Appeal – whether discharge of stay order should be deferred for a short period of time

PROCEDURE – stay pending appeal – money judgment – order remitting possession proceedings to NCAT for making orders terminating residential tenancy agreement and for possession – whether arguable grounds of appeal – appellants seek to rely on further evidence on appeal – challenge to findings based on credibility – where the balance of convenience lies

NEGLIGENCE – school student injured while training in Council pool – pupil directed by swimming coach employed by School to dive into shallow end of pool – pupil slipped and suffered serious injury – whether Council liable to pupil – where guidance to pool operators permitted diving by trained competitors into shallow end of pool – whether School liable to pupil for failing to train her to abort a mis-executed dive – whether School liable for failing to be aware of elevated risk of track-start dive at a pool without readily grippable coping tiles – whether School liable for failing to conduct a risk assessment of pool – consideration of “risk of harm”, breach of duty and causation – appeal by School allowed, appeal by pupil against Council dismissed

CONTRACT – formation – whether concluded agreement reached between partners and building company – whether primary judge erred in making findings of fact

PROCEDURE – subpoenae – documents produced to court – access to documents – where documents sought in aid of notice of motion – relevance of documents to determining whether first defendant has complied with obligation to produce trust documents – rights of confidentiality of third party – where third party has not opposed subpoena – whether subpoena issued as abuse of process – where subpoena issued before filing of notice of motion – where issues in notice of motion must reasonably have been contemplated by first defendant to be in dispute – where documents sought under subpoena not required to be produced under orders in substantive proceedings – orders for production not inclusive of relevance of document to issues in dispute in motion – where subpoena issued without first seeking production of documents voluntarily – no general rule requiring request for voluntary production before issuing subpoenae – discretion of court to grant access – factors relevant to exercise of discretion – strong predilection to granting access in absence of claim of confidentiality.

CRIMINAL LAW – evidence – voir dire – admissibility of evidence – accused’s behaviour after deceased’s disappearance – witness statements – whether evidence unfairly prejudicial

EQUITY - Succession - Costs orders - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Where offer accepted and no provision for costs - Whether there has been judgment in favour of the plaintiff

CRIMINAL LAW - trial for female genital mutilation and associated charges - Accused Magennis who allegedly performed procedures on two girls was a nurse and midwife - Crown tenders details of Accused Magennis’ registration and employment history as nurse and midwife in New South Wales - objection as to relevance - material relevant - evidence admitted

CRIMINAL LAW - Crown application under s.42 Evidence Act 1995 that defence counsel be prevented from using leading questions in cross-examination on certain topics of Crown witness who was the husband of one of the Accused - witness had been cross-examined by Crown by leave under s.38 Evidence Act 1995 - Crown application under s.42 refused

WILLS PROBATE & ADMINISTRATION – The deceased died intestate in 1992 – Persons entitled on intestacy – Administrator uncertain as to whether all siblings of the deceased or issue identified – Determination of matters in doubt – Administrator seeking order giving liberty to distribute the estate on particular basis – Deceased domiciled in New South Wales – Distribution – Plaintiff justified in distributing the estate – Benjamin Order made

COSTS – assessment – whether successful defendants should not be awarded full costs because of the manner in which evidence-in-chief was adduced – whether defendants should not have costs associated with two expert reports