Cases and authorities

TORTS – negligence – motorcycle accident – where road recently resurfaced – liability – whether risk of harm reasonably foreseeable – whether risk of harm not insignificant – whether there were reasonable precautions which could have been taken – whether causation established TORTS – contributory negligence - whether contributory negligence established TORTS – negligence – multiple tortfeasors - apportionment – whether apportionment of liability unreasonable or plainly unjust CONTRACTS – general principles - construction – proper construction of public liability insurance clause

SUCCESSION – family provision order – adult child (claimant) claims further provision from moderately substantial estate of his mother – claimant dependent on parents – two siblings relatively well off - interim distribution under will offset against costs owed by the claimant to the estate due to intra-family litigation – whether primary judge erred in finding that claimant’s conduct in intra-family litigation did not preclude a family provision order – whether claimant’s conduct was malicious or in bad faith - whether the claimant’s financial needs included a provision for a two bedroom apartment – whether primary Judge’s discretion miscarried

PRACTICE AND PROCEDURE – primary Judge refused applicant leave to file third version of statement of claim - application for leave to appeal from interlocutory decision - whether application gives rise to an issue of principle or injustice if refused – application for leave to appeal refused

CRIMINAL LAW – application for adjournment – delay in obtaining psychiatric report – defence counsel unavailable – adjournment granted

PRACTICE AND PROCEDURE – Sale of goods – Motor vehicles – Vendor seeking to recover car held by Customs – Customs Act 1901 (Cth)

CORPORATIONS – receivers, controllers and managers – appointment of liquidators as receivers – whether liquidators capable of being appointed receivers – Corporations Act 2001 (Cth) s 418 – held, not necessary to express a view a to scope of s 418 in the circumstances.

PRACTICE AND PROCEDURE – Action and cross-claim – Agreement between all counsel representing the parties to resolve the claim and cross-claim – Plaintiff withdraws instructions given after agreement reached – Assertion by Plaintiff that he did not understand proceedings and that agreement procured by duress – No assertion that counsel’s authority exceeded – Plaintiff withdraws instructions to solicitors and counsel – Whether Defendants entitled to have orders made – Entitlement to have orders made as no dispute that binding agreement made by counsel before Plaintiff’s instructions withdrawn – Stay of entry of orders to enable Plaintiff to obtain legal advice – Orders made in other proceedings – Varied by consent of the parties – Orders made but stay of entry

PROCEDURE – where parties had mixed success – whether costs should follow the event – whether to award costs in accordance with the parties’ success of clearly separable and dominant issues.

COSTS – application to set aside statutory demands – whether defendant should bear the costs of the proceedings after withdrawing original statutory demands – held each party will pay its own costs of the proceedings

PARTNERSHIP – principles of partnership law governing remuneration of partners and entitlement to share in profits and contribute to losses – s 24(6) of the Partnership Act 1892 (NSW) – partner’s failure to undertake work in partnership may disentitle that partner to receipt of salary or may be a breach of the partnership agreement subjecting defaulting party to liability to pay damages – ultimately obligations will depend on proper construction of relevant partnership agreement PARTNERSHIP – agreed statement of issues to be determined – first plaintiff and first defendant entitled to receive payment stipulated in agreement subject to caveats – distribution to partners are to be credited against share of profits – whether the first plaintiff’s failure to work in the partnership business disentitles him to agreed salary distribution – whether implied term in partnership agreement reduces the obligation that fiduciary duties would have otherwise imposed – court finds distribution of ‘salary’ and ‘wages’ was to be paid to partners in proportion to work undertaken, particularly given nature of the business – consideration of surrounding circumstances – evidence does not prove that parties understood the first plaintiff was solely an investor and would not work in the business – post-contract conduct not admissible in construction of present partnership agreement – the first defendant’s conduct is too equivocal to justify finding of admission – first plaintiff not entitled to proportion of salary in the absence of working

CRIMINAL LAW – Application by the Minister for an order extending the status of the defendant as a forensic patient for a period of 2 years – Where defendant charged with having sexual intercourse with a child under the age of 10 years – Where defendant found unfit to be tried – Limited term imposed upon the defendant following a special hearing – Limiting term completed – Whether the defendant posed an unacceptable risk of causing serious harm to others if he ceased being a forensic patient – Whether any identified risk could be adequately managed by other less restrictive means – Where proffered alternative involved the placement of the defendant in an aged care facility – Where medical evidence supported the conclusion that ongoing treatment of the defendant’s condition required a multi-factorial approach involving the input of a variety of medical professionals – Where medical treatment and assistance at the proposed facility was comparatively limited – Extension order made for a period of 2 years

COSTS – where plaintiff sought prerogative relief with respect to proceedings in NCAT – where proceedings in this Court not pursued – where costs of proceedings to be determined by reference to issues that remain undecided in NCAT– whether plaintiff in this Court would have succeeded in NCAT – where costs should be paid by the defendant whose proceedings in NCAT were likely to fail

CRIMINAL LAW – appeal – conviction – appellant drove car whilst held by police officers in attempt to evade apprehension – officers standing outside car – no intention to harm officers – whether use of car as an offensive instrument with intent to prevent or hinder lawful apprehension under Crimes Act 1900 (NSW) s 33B(1)(a) CRIMINAL LAW – appeal – conviction – whether intoxication relevant to issue of whether appellant intended to use vehicle as offensive instrument for the purposes of Crimes Act 1900 (NSW) s 33B(1)(a) – offence of specific intent – consideration of Crimes Act Part 11A, including s 428C

COSTS – appeal – costs on appeal where appellant successful on some grounds of appeal but not others – costs for proceedings below where proceedings remitted

FAMILY LAW AND CHILD WELFARE – parental responsibility – application for interim order allocating parental responsibility to Secretary – (NSW) Adoption Act 2000, s 84(2) – where no application for adoption pending – whether jurisdiction for interim order under s 84(2) requires pending application for adoption order – whether birth mother should be joined to proceedings.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application for order convening meeting of members to consider scheme of arrangement – whether scheme could be approved – whether scheme fair and reasonable – whether explanatory statement fairly puts scheme – where practical effect of deemed warranty as to title by each shareholder not sufficiently explained – where explanatory statement does not include statement of registration with ASIC – where notice to shareholders of second hearing and right to appear to oppose scheme not sufficiently prominent – where advantages and disadvantages of scheme explained in enormous detail.

WILLS, PROBATE AND ADMINISTRATION – family provision – claim by adult daughter for greater provision out of her mother’s estate – whether plaintiff engaged in disentitling conduct – where plaintiff’s relationship with her mother had been strained – dispute as to plaintiff’s authorship of offensive letters sent to her mother resolved against plaintiff – relevance of plaintiff’s failure to disclose minor financial assistance provided by her estranged husband – consideration of plaintiff’s future needs – consideration of what a ‘wise and just testator’ would have provided – held that an order for further provision should be made, but not in the amount sought by the plaintiff

CRIMINAL LAW – Appeal and review – Application for inquiry into sentence under s 78 Crimes (Appeal and Review) Act – Applicant pleaded guilty to five counts relating to offences committed while he was a police officer – Applicant claimed sentencing judge had proceeded on an incorrect factual basis – Statement of “agreed facts” tendered on sentence was said to have contained errors and was not agreed to by the applicant – Applicant contended that the sentences imposed were manifestly excessive as a result – Applicant contended disparity between his sentence and sentence of co-offender – Applicant contended sentencing judge had failed to take into account extra curial punishment he had suffered through the loss of his family home – Applicant’s grounds on the application had already been considered by the Court of Criminal Appeal and dismissed – Applicant had not sought special leave to appeal to the High Court of Australia – Whether basis for inquiry into sentence under the Act – Whether basis for referral of matter to the Court of Criminal Appeal – No error established on part of sentencing judge – No error established by Court of Criminal Appeal – No facts or circumstances existing sufficient to cause sense of disquiet or unease with respect to sentence – Application dismissed – No grounds established for a direction or referral under s 79(1) Crimes (Appeal and Review) Act.

PRACTICE AND PROCEDURE – request for particulars – unduly burdensome – abuse of process – no obligation to answer questions – insufficient particulars in statement of claim – liberty to amend

INTERPRETATION - Civil Procedure Act – Applicability to Compensation to Relatives Act – operation of “arising out of”.

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

TRUSTS - trustee seeks judicial advice under Trustee Act 1925, s 63 – testamentary trust – trust properties owned jointly by the trust and by a beneficiary of the trust – beneficiary seeks the appointment of trustees for sale under Conveyancing Act, s 66G for the sale of the jointly owned properties – trustee seeks judicial advice as to whether she would be justified in defending the proceedings and on what terms.

CRIME – application for judge alone trial – second application – Criminal Procedure Act 1986, s 130A – whether interests of justice warrant treating earlier refusal as not binding – whether earlier refusal “flawed” – whether material change in circumstances from earlier refusal – persistent adverse publicity labelling accused as corrupt – means of allaying publicity – whether factual issues for jury to consider – whether factual issues involving application of community standards – no matter raised that warrants treating earlier order as not binding – fresh consideration warrants refusal in any event – not appropriate for certification under s 5F(3)(b).

APPEAL – application for Judge to certify order – s 5F(3)(b) of Criminal Appeal Act 1912 – trial judge overruled demurrer and rejected application for stay – quasi-jurisdictional points raised – caution exercised in certifying – application refused.

CRIMINAL LAW - evidentiary ruling - Accused persons charged with female genital mutilation (“FGM”) under s.45 Crimes Act 1900 and associated charges - Crown tender of evidence of New South Wales Education Program on FGM - education of health professionals - Crown alleges Accused persons involved in creation of a false story to explain procedures which involved FGM causing injury - education material relevant - no basis to exclude under s.137 Evidence Act 1995 - evidence allowed

MENTAL HEALTH – community treatment order – how far order dependent on mental health of affected person at the date of trial

COSTS – application to amend pleadings – multiple iterations of proposed pleading served by plaintiff – no exception to general rule that amending party is obliged to pay the other party’s costs thrown away by reason of the amendment – whether costs ought be payable forthwith – plaintiff maintained appropriateness of pleading despite detailed objections – plaintiff subsequently radically altered pleading – order made requiring costs to be paid forthwith

CIVIL LAW – Crimes (High Risk Offenders) Act 2006 – high risk sex offender - preliminary hearing – application for appointment of two psychiatrists to examine the defendant – application for interim supervision order pending the final hearing –– whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – where defendant has lengthy history of sexual offending against children – defendant diagnosed with paedophilic disorder and paraphilia – where defendant does not oppose orders sought – court satisfied that relevant statutory criteria satisfied – orders sought made

WORKERS COMPENSATION – decision of Medical Appeal Panel – application of s 323 of the Workplace Injury Management Act 1998 – worker suffered from osteoarthritis – worked for same employer from 1978 to 2004 – whether had a “pre-existing condition” – whether panel assumed or found development of osteoarthritis during course of employment meant he had pre-existing condition – error established – decision set aside.

COSTS – costs inter partes of motion filed following Court’s judgment – where motion brought despite signals of potential cooperation from one respondent – where one respondent had acted incompatibly with Court’s judgment – indemnity costs – where third party investment platform provider received contradictory instructions from some of several trustees who were required to act jointly – third party defensively restricted access for all trustees – where motion initially sought orders respondent could not technically carry out and respondent engaged in correspondence to vary orders sought.

EQUITY – equitable relief – equitable estoppel – scope of estoppel held to exist in previous judgment – orders necessary to give effect to estoppel CIVIL PROCEDURE – application for stay of judgment pending appeal or expiry of period for lodging an appeal – whether balance of convenience favours stay – where no evidence as to cost of giving effect to judgment – where over 10 years had passed since termination of plaintiff’s employment – public interest in quick resolution of disputes COSTS – indemnity costs – common fund basis where partial function of litigation was as a construction suit – whether reasonable to reject alternative offers made in Calderbank letter – where offers made before expert evidence as to quantum served – where offers made without explanation of plaintiff’s claims in context of inherently complex and not-yet-finalised pleadings -- interest on costs – where no evidence as to timing of incurring of costs – costs of first defendant’s liquidator – where first defendant was not heard as to costs.

CRIMINAL LAW – appeal – conduct of judge – sentencing – procedural fairness - questioning by judge – whether questioning of witness by judge led to a miscarriage of justice

CRIMINAL LAW – conviction appeal – wound with intent to cause grievous bodily harm – whether error in good character direction – whether good character direction undermined by qualification – point not taken at trial – need to rely upon r 4 – very low chance of any misunderstanding by jury – no error in good character direction – no miscarriage of justice nor did offender lose a chance of acquittal which was fairly open – leave to rely upon r 4 refused.

ADMINISTRATIVE LAW – jurisdictional error – jurisdictional fact – whether the existence of a reference date in s 8 of the Building and Construction Industry Security of Payment Act 1999 (NSW) to support a payment claim is a jurisdictional fact STATUTORY CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 8, 13

ADMINSTRATIVE LAW – judicial review – decision of the District Court dismissing appeal from Local Court – whether jurisdictional error or error of law on the face of the record – whether Local Court magistrate acted outside the jurisdiction of the Court by making an order for indemnity costs - whether Local Court magistrate acted outside the jurisdiction of Court by transferring proceedings from the Small Claims Division to the General Division after judgment had been made in the proceedings PRACTICE AND PROCEDURE – slip rule – Uniform Civil Procedure Rules 2005 (NSW), r 36.17 - application of slip rule – whether properly exercised nunc pro tunc in transferring proceedings from Small Claims Division to General Division of the Local Court after judgment had been entered for indemnity costs beyond the jurisdiction of the Court sitting in its Small Claims Division

CRIMINAL LAW – pre-trail proceedings – voir dire concerning the admissibility of evidence – undercover police operation – admissions made to undercover police operative – question of legality of undercover operation – question of unfairness by police

CRIMINAL LAW - admissibility of evidence - objection to tender of answers given by persons as part of police canvass - evidence not admitted

COURTS PRACTICE – tutor for minors – appointed after suggestion to court by counsel for executor that appointment necessary – tutor entitled to indemnity from executor

BANKRUPTCY – Trustee – Jurisdiction of Federal Court and State Supreme Courts – “special federal matter” – frivolous and vexatious proceedings – dismissal of proceedings etc. for want of due despatch

CORPORATIONS – winding up – appeal from a decision of liquidator rejecting a proof of debt – where proof of debt related to purported employment entitlements of the Plaintiff – whether the Court should reverse or modify the rejection of the proof of debt CONTRACTS – general contractual principles – formation of contract – where discussions occurred between Plaintiff and his employer relating to potential working opportunity in the United States – where Plaintiff argued oral agreement was formed – whether contract was formed and if so on what terms.

PRACTICE AND PROCEDURE – preliminary discovery to identify potential defendant in proposed defamation claim – exercise of discretion – weakness of plaintiff’s putative claim – public interest in free flow of information between councils and constituents – relevance of potential defence of qualified privilege – summons dismissed

ADMINISTRATIVE LAW – Lifetime Care and Support Scheme – judicial review of decision of Review Panel refusing Plaintiff insurer’s application for First Defendant to join scheme – whether Review Panel erred in applying test for connection between brain injury and functional incapacity – alleged error immaterial – whether Review Panel’s reasons adequate – alleged failure to address inconsistencies in First Defendant’s histories to doctors – alleged failure to address First Defendant’s stated unwillingness to join scheme – ground rejected – misconceives function of Review Panel – proceedings dismissed.

CRIMINAL LAW – Appeal – Appeal against decision of primary judge to vacate the applicant’s trial on the application of the Crown – Where applicant had been in custody for a period of 19 months awaiting trial – Where vacation of the trial would likely result in the applicant being in custody for more than 2 years awaiting trial – Where applicant’s family and a witness had made arrangements to travel to Australia from Taiwan for the trial - Where Crown wished to serve further material in support of its case – Where primary judge exercised his discretion on the basis that the estimated length of the trial was now in excess of the estimate which was given at the time of setting the trial date – Where primary judge gave primacy to that fact over the consequences to the accused – Exercise of discretion unreasonable and plainly unjust - Error established – Orders of primary judge quashed - Observations as to the importance of the District Court having the capacity to finalise criminal cases in a timely manner

CRIMINAL LAW – appeal – sentence – offence of reckless wounding – “glassing” – single ground of appeal – whether sentence manifestly excessive

CRIMINAL LAW – appeal against conviction and sentence – appellant was a bank officer – appellant found to be part of scheme to defraud bank to provide loan funds to purchase property for inflated sale price –false employment documents submitted in support of loan application – appellant found to have falsely certified employment documents as genuine – one count of use false instrument under former Crimes Act s 301(2) and one count of make false statement with intention to obtain an advantage under former Crimes Act s 178BB – Conviction Appeal – prior to empanelment trial judge ruled that aspects of appellant’s approval of earlier loans were admissible for tendency evidence and other aspects admissible for coincidence purposes – Crown addressed jury as though all aspects of the loan applications admissible for coincidence purposes – no reference to tendency evidence – no complaint by Counsel for appellant at trial – trial judge summed up in a manner consistent with Crown address and inconsistent with pre-trial ruling – whether departures from pre-trial ruling occasioned a miscarriage of justice – no unfairness demonstrated – Counsel for Appellant embraced departure from pre-trial ruling – whether departure from pre-trial ruling constituted wrong decision on any question of law – whether pre-trial ruling “binding” – whether evidence properly admissible for coincidence purposes – held no miscarriage of justice – no wrong decision on any question of law – Conviction Appeal – whether verdict unreasonable – Crown case strong without coincidence evidence – Crown case overwhelming with use of coincidence evidence – ground rejected – Sentencing – appellant sentenced to five years imprisonment consisting of two years non-parole and balance of term of three years – whether sentencing judge erred in assessing level of involvement in fraudulent scheme having regard to what was revealed by evidence of appellant’s involvement in other loan applications – no error demonstrated – accepted that hardship occasioned to appellant’s daughter from separation from appellant amounted to exceptional circumstances – substantial reduction in non-parole period – whether sentencing judge erred in failing to also reduce head sentence – no House v R error shown – appeal against conviction and sentence dismissed.

CRIMINAL LAW – appeal against sentence – drug and firearms offences – aggregate sentence imposed – whether sentencing judge failed to assess adequately the objective seriousness of the offences – whether the sentencing judge erred in failing to give sufficient weight to the applicant’s schizophrenia – whether the sentence was manifestly excessive – leave to appeal granted – appeal dismissed

CRIMINAL LAW – appeal – sentencing – incorrect maximum term of imprisonment assumed by primary judge – substituted sentence – supply cocaine and cannabis leaf and dealing with proceeds of crime

APPEAL – application for leave to appeal – defamation claim statute barred – leave refused

PROCEDURE – civil – leave to appeal from judgment of Supreme Court affirming magistrate’s decision finding solicitor liable for barrister’s fees – matter involving less than $100,000 – no issue of principle, question of general importance or injustice which is reasonably clear – leave to appeal refused