Cases and authorities

COSTS - where offer of compromise made by plaintiff and not accepted, Uniform Civil Procedure Rules 2005 (NSW) 20.26 - offer only capable of acceptance by defendants acting jointly - second defendant successful at trial - offer not more favourable than result - first defendant to pay costs of plaintiff on ordinary basis COSTS - where partial success of second defendant - failed defences not argued at trial - failed defences identical to those of first defendant - costs of preparation coextensive with those regarding first defendant - order in favour of plaintiff would enable duplicate recovery - plaintiff to pay costs of second defendant

ADMINISTRATIVE LAW – judicial review – whether decision of Motor Accidents Authority Review Panel ought be set aside on the basis of error of law on the face of the record or jurisdictional error – no basis to conclude that Review Panel failed to fulfil its obligation – no error of law or jurisdictional error established – whether examination conducted by two of the three assessors who comprised the Review Panel invalid under s 63 of Motor Accidents Compensation Act 1999 (NSW) – doctrine of stare decisis – no reason to depart from earlier Supreme Court decision -– summons dismissed

COSTS – Where plaintiff sought to challenge the right of the Commonwealth Director of Public Prosecutions to prosecute offences against State legislation – Where determination made that the plaintiff was not entitled to the statutory relief sought – Where plaintiff then commenced separate proceedings seeking declaratory relief – Where declaratory relief refused – Where plaintiff then sought a stay of proceedings in the Court of Appeal – Where application for stay refused – Whether the costs should follow the event – Whether discretion should be exercised against an award of costs on the basis that the proceedings formed part of the criminal process – Where there were factors supporting the making of costs orders – Orders made requiring the plaintiff to pay the first defendant’s costs in both proceedings

APPEAL FROM MAGISTRATE – Where plaintiff company leased premises from the defendant – Where premises leased for the purposes of the company’s business as well as for the purposes of providing a residence for the company director and his family - Where premises said to have been kept in a poor state of repair – Where plaintiff lessee sued the defendant lessor for damages for economic and non-economic loss - Whether Magistrate erred in construing the lease – Whether Magistrate erred in concluding that the plaintiff could not recover damages in respect of losses suffered by individual occupants of the premises who were named on the lease agreement but who were not parties to the agreement – Whether Magistrate erred in concluding that the Civil Liability Act applied to the claim for damages for non-economic loss brought by the plaintiff

DEFAMATION – procedure – trial – functions of judge and jury – defences – qualified privilege – statutory defence of qualified privilege – element of reasonableness – whether a question for the jury – consideration of Davis v Nationwide News Pty Ltd

DEFAMATION – justification – defence to defamatory imputations – defendants pleaded substantial truth of each imputation – trial judge found the imputations were defamatory, but accepted defence – whether trial judge reversed onus of proof in relation to defence - whether trial judge erred in upholding the defence – Defamation Act 2005 (NSW), s 25

BANKING AND FINANCIAL INSTITUTIONS – mortgagee exercised power of sale – borrower claimed mortgaged property sold at undervalue – amendment prior to trial removed allegations of sale at undervalue from cross-claim – borrower given repeated opportunities to provide valuation evidence – no evidence served – no error in refusing further amendment on ninth day of trial PRACTICE AND PROCEDURE – defendant's solicitor applied for leave to cease to act on first day of trial – application unopposed – leave granted – trial proceeded with defendant unrepresented – whether error in failing to grant adjournment – where no adjournment sought – where borrower acting for himself had made repeated applications for adjournments previously – no error shown

CORPORATIONS – application for reinstatement of company under s 601AH of the Corporations Act 2001 (Cth) – where Plaintiff sought to reinstate a deregistered company so that the company could receive funds from sale of investment.

INSURANCE – calculation of interest under s 57 of the Insurance Contracts Act 1984 (Cth) – date from which it was unreasonable for insurers to withhold payment

PRACTICE & PROCEDURE – whether a stay of execution of a writ of possession should be conditional on payment of rental arrears – where arrears fall into two categories, the later relating to a holding-over and the earlier relating to debt owed for over a year – where equity would require the defendant to do equity and bring itself up to date on the current lease before granting a stay of the writ – where that rationale would not extend to give the plaintiff security for the entire judgment sum – order that the defendant pay only the latter sum into court COSTS – two defendants – where each seeks an order that costs be payable only of the proceedings as against it – where two cases shared the same facts, issues of law, lawyers, counsel and evidence – consequence that cases were inextricably interlinked such that costs should not be split up – order that the defendants pay the plaintiff’s costs

VENDOR & PURCHASER – four vendors described as owner – deposit to be paid to ‘Owner’ defined as the four vendors – deposit to be released to owner – whether a joint debt – whether each vendor can receive one quarter of deposit – as the four vendors cannot agree – deposit to be paid into court – whether principle in Bragg v Alam [1981] 1 NSWLR 688 means that payment of deposit is excused

COSTS – Two proceedings heard together – Probate and family provision proceedings – The Plaintiff, the executor named in the duly executed Will of the deceased in the Probate proceedings was unsuccessful in propounding that Will – Agreement at hearing that if duly executed Will not the subject of a grant, Probate in solemn form of an informal Will be granted to the Defendant/Cross-Claimant – Issue whether costs of the Plaintiff, calculated on the indemnity basis, rather than on the ordinary basis of the Probate proceedings, be paid out of the estate of the deceased – No dispute that Defendant/Cross-Claimant should receive his costs, calculated on the indemnity basis, out of the estate of the deceased In the family provision proceedings, the Plaintiff in the Probate proceedings named as the Defendant in order to defend the proceedings – Proceedings dismissed as a result of decision in Probate proceedings – Whether Defendant should receive any costs of the family provision proceedings – No dispute that the Plaintiffs in the family provision proceedings should receive their costs as part of the costs of the Defendant/Cross-Claimant in the Probate proceedings – Affidavits read in Probate proceedings ASSESSMENT OF COSTS – Because Plaintiff unsuccessful in Probate proceedings it no longer relevantly interested in quantum of Defendant/Cross-Claimant’s costs – One of the beneficiaries in informal Will seeks order that costs of the Defendant/Cross-Claimant in both the Probate proceedings and the costs of the Plaintiffs in the family provision proceedings be assessed

CIVIL LAW – workers compensation – merits review of work capacity decision – calculation of post-injury earnings – jurisdictional error – where plaintiff put different basis for calculation before the decision maker – whether delegate erred by failing to consider alternative basis not put by either party – procedural fairness – whether delegate denied plaintiff opportunity to put alternative case

CRIMINAL LAW – COSTS – Costs in Criminal Cases – nature of test – evidence excluded on voir dire – whether unreasonable to institute proceedings – prosecutor entitled to seek to adduce evidence – retrospective wisdom – does not include predicting findings as to credit – does not include predicting exercise of discretion – application refused

CRIMINAL LAW – appeal against aggregate sentence – whether aggregate sentence manifestly excessive.

SENTENCE APPEAL – break and enter – no assessment of objective seriousness by sentencing judge – no reference to facts of offence – reference to seriousness in course of argument – error demonstrated – if sentencing discretion re-exercised higher sentence would be imposed – appeal dismissed.

PRACTICE and PROCEDURE – application for leave to appeal – extension of time – application 10 years out of time – challenge to costs order – proceedings earlier dismissed but reinstated – ground of proposed appeal unarguable – absence of justification for delay

COSTS – succession – one claimant partially successful on claim – another claimant unsuccessful on claim – whether unsuccessful party should bear entire cost of defending the proceedings – unsuccessful party to bear portion of costs attributable to her claim

STATUTORY INTERPRETATION – application of general law principles to statutory compensation scheme – construing two statutes of the same legislature conformably – whether provisions of one statute picked up by second statute WORKERS’ COMPENSATION – dust diseases – whether qualified claimant entitled to payment of benefit – whether Dust Diseases Board entitled to refuse claim where damages recovered – whether general law prohibition on double recovery applies to a claim for compensation under Workers’ Compensation (Dust Diseases) 1942 (NSW)

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – discharge of secure accommodation order – requirement to be satisfied that appropriate alternative structure or transitional arrangements in place – discharge of recovery order – whether recovery order survives child’s attaining 18 years of age – interaction of guardianship functions of Public Guardian and court’s parens patriae jurisdiction

LEASES – claim by landlord under a sublease for vacant possession – where subleases over three warehouses contained options to renew – where defendant sublessees claim they exercised that option – failure to exercise option in writing as required by the contract – whether options exercised orally – absence of satisfactory evidence to that effect – where four principal witnesses found to be lacking in credibility – issues of fact to be determined on the probabilities regarded objectively – conclusion that options never exercised ESTOPPEL – whether plaintiff estopped from denying that options had been exercised or that new leases had been entered into – where that case depends upon uncorroborated and unreliable witness evidence – where in any circumstances no detriment – result that no estoppels arise

BAIL – detention application – murder – show cause offence – where respondent a quadriplegic requiring significant care – cause shown – unacceptable risk test – where respondent breached bail condition not to abuse, harass, intimidate or assault any person providing him with care – respondent highly abusive to hospital staff – difficulties regarding placement of respondent – whether respondent can be adequately managed in Long Bay hospital – unacceptable risk of respondent endangering safety of hospital staff, other patients and visitors – application granted – bail refused

COSTS – related proceedings for judicial review and in contract – plaintiff unsuccessful in one but successful in the other.

CIVIL PROCEEDINGS – separate question whether clauses in a settlement deed in respect of proceedings for damages amount to a penalty – acknowledgement of debt.

CRIMINAL LAW – procedure – application by accused for directed verdict of acquittal upon basis of no case to answer – charge of conspire with intention of dishonestly influencing a Commonwealth public official - whether evidence upon which jury could convict

TORT – negligence – fire destroyed home – whether fire caused by defective installation of meter by defendant – inability to show precisely how fire started not fatal to discharge of plaintiffs’ onus – negligent installation of the meter was a reasonable and probable explanation for fire – unnecessary to exclude other possible explanations for known facts PRACTICE AND PROCEDURE – defendant sought to rely on exclusion clause in supply contract – exclusion clause not pleaded – no application for leave to amend – reliance not permitted

CRIMINAL LAW – high risk violent offender – application for stay of extended supervision order – Crimes (High Risk Offenders) Act 2006 (NSW), s 5F PRACTICE & PROCEDURE – stay – application for continuation of interim detention order until appeal of extended supervision order heard – Crimes (High Risk Offenders) Act 2006 (NSW), s 18B – whether granting of stay would give effect to primary object of the Crimes (High Risk Offenders) Act 2006 (NSW) to ensure the safety and protection of the community – Crimes (High Risk Offenders) Act 2006 (NSW), s 3(1)

APPEAL - conviction - joint criminal enterprise fraudulently to import cigarettes using “piggyback” method - offence of doing “anything with the intention of dishonestly causing a loss” to a Commonwealth agency - Criminal Code (Cth), s 135.1(3) - whether indictment duplicitous where Crown relied upon variety of acts to sustain single charge - reliance on a course of conduct sufficient to avoid duplicity - Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157 WORDS AND PHRASES - “anything” - composite concept encompassing a variety of acts - word can entail single act or courses of conduct APPEAL - conviction - admissibility of evidence of prior “piggyback” importations - whether evidence tendency evidence - whether danger of unfair prejudice outweighed probative value - any prejudice curable by directions - evidence used to establish context of offending - evidence had “very high” probative value APPEAL - conviction - whether direction to jury concerning substantial participation invited tendency evidence reasoning - direction drawn directly from Harriman v The Queen [1989] HCA 50 - no error found - appeal against conviction dismissed APPEAL - sentencing - whether trial judge erred in finding appellant’s role “not insignificant” - finding supported by the facts - sentence imposed not consistent with finding of high degree of involvement - leave to appeal against sentence refused

BIAS – proceedings involving retired justice of High Court – lack of personal relationship between trial judge and retired judge – whether seniority and standing in legal profession gave rise to subconscious bias on the part of the trial judge BIAS – pre-judgment – evidence from affidavit not read at trial relied on by the trial judge in reasons for judgment – trial judge acknowledged reading all evidence on file at the commencement of trial – whether parts of judgment written prior to hearing – whether disadvantage to appellant – whether pre-judgment on the part of trial judge – Civil Procedure Act 2005 (NSW), s 56 SUCCESSION – family provision – application by estranged daughter made out of time – applicant learnt about mother’s death one year after the fact – daughter obtained copy of will and foreshadowed claim but took no further steps for two more years – proceedings instituted more than three years after death of testator – estate then distributed – whether sufficient cause shown to make an order despite the delay – prejudice to beneficiaries demonstrated – Succession Act 2006 (NSW), s 58(2) SUCCESSION – family provision – applicant’s needs uncontested – applicant changed name and moved interstate – evidence of difficult relationship between applicant and deceased prior to estrangement – no meaningful attempts to reconcile – whether erroneous fact findings by trial judge – whether too much weight placed on lengthy estrangement and applicant’s conduct – application by estranged daughter dismissed

TORTS – negligence – employee injured back while lifting boxes at work – where system of work involved employee lifting boxes weighing up to 9.8 kg – employee injured when lifting box weighing no more than 7 kg – claim against employer dismissed – no error by primary judge in failing to deal with evidence that employee was lifting and twisting – primary judge relied upon actual weight of box lifted to find no breach of duty – respondent conceded error – error led to aspects of employee’s claim not being addressed – whether substantial miscarriage of justice – experts not cross-examined at trial – assumptions of employee’s expert not supported by evidence – other expert evidence failed to establish breach – appeal dismissed

PRACTICE AND PROCEDURE – Interlocutory injunction – Application to restrain Defendants from making representations that a pram that it sold meets or complies with one or more of the Australian Safety Standards – Allegedly false representations – Serious question to be tried not in dispute – Whether balance of convenience favours granting interlocutory injunction at least until receipt of single expert report – Whether damages an adequate remedy – Question of utility of Plaintiff’s undertaking as to damages COSTS – Whether costs of interlocutory application should be determined at conclusion of the interlocutory hearing – Ordered that costs of the interlocutory hearing should be reserved until following receipt of the single expert report at which time the application for costs may be made

CIVIL PROCEDURE – Criminal Assets Recovery Act 1990 – restraining order

CIVIL PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order

PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order

EQUITY - Succession - Application for family provision under Part 3 Succession Act 2006 by estranged adult son - Where deceased did not make provision for applicant in will - Statement from testator under s 100 of the Succession Act s 100 - Consideration of matters under s 60(2) of the Succession Act - Plaintiff’s financial circumstances - Plaintiff’s character and conduct - Plaintiff’s hostility towards testator and other family members

CRIMINAL LAW – pre-trial application – competence and compellability of witnesses (ss.13 and 18 Evidence Act 1995) – Accused persons charged with female genital mutilation offences against two girls (C1 and C2) – mother of C1 and C2 is an Accused person – whether C2 is competent to give evidence at trial – C2 able to understand the difference between truth and lie and engage with questions concerning facts – C2 competent to give sworn evidence at trial – whether C1 and/or C2 are compellable to give evidence at trial – likelihood of psychological harm and harm to relationship if C1 and/or C2 called to give evidence – factors relevant to balancing exercise under s.18(6) - nature and extent of harm does not outweigh the desirability of C1 and C2 giving evidence – application declined – operation of s.65 Evidence Act 1995 considered in obiter remarks

SENTENCE APPEAL – cultivate prohibited plant by enhanced indoor means – supply cannabis – applicant found to have cultivated 61 plants – sentencing judge accepted not principal although did not accept role limited to watering plants – error in stating maximum sentence for supply charge conceded – no error in failing to afford 25% discount for cultivate charge – sentence for cultivate charge manifestly excessive – applicant re-sentenced.

CRIMINAL LAW – appeal against sentence – co-offenders – demand money in company with menaces – participate in criminal group – whether error in consideration of mental health issues – no causal link between mental health issues and offending – whether error in determination of objective seriousness of count 1 – where applicants sought to extort substantial sum of money from business owner – where applicants threatened harm to victim and family – no error in finding offence extremely serious – sentence not manifestly excessive – appeal dismissed CRIMINAL LAW – appeal against sentence – co-offenders – demand money in company with menaces – participate in criminal group – whether error in distinguishing between roles of offenders – whether error in regard to parity principles – open to judge to differentiate between applicants in the way that he did – no error established – appeal dismissed

COSTS – indemnity costs – at first instance – Calderbank offers – whether genuine – reasonableness of rejection – first Calderbank offer open for 2 days – second Calderbank offer inclusive of costs – offer of compromise – compliance with UCPR – whether covering letter inconsistent with UCPR – appeal costs – whether offers at first instance may be relied on in relation to indemnity costs on appeal COSTS – interest on costs – whether interest to be awarded on costs as paid by successful appellant – appellant succeeded on single issue of causation of injury – no identification of costs relating to causation issue – appeal costs incurred relatively recently – no order as to interest on costs

CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – application for adjournment of hearing application under Corporations Act 2001 (Cth) s 440A –whether it is in the interests of company’s creditors for company to continue under administration rather than be wound up

PROCEDURE – civil – application to vacate hearing date

PROCEDURE – civil – application for an extension of a stay of a writ of possession – application of third party - hardship

CRIME - application for trial by a judge alone - whether in the interests of justice – complexity and potential prejudice surrounding issue as to applicant’s state of mind

CRIMINAL LAW – particulars – where detailed particulars of allegations provided over several years - Crown opening – whether Crown restricted or limited its case in opening to the jury – whether Crown case as opened different to case led at trial – whether accused provided with adequate particulars in such circumstances

EVIDENCE – tender of letter and “rough diagram” – whether probative or unfairly prejudicial – whether probative value substantially outweighed by danger of unfair prejudice – whether documents might be misleading or confusing

TORTS – negligence – contributory negligence – where respondent suffered injuries in motor accident whilst travelling in vehicle driven by intoxicated driver – whether primary judge erred in finding that driver intentionally drove vehicle partly off the roadway thereby causing accident TORTS – negligence – contributory negligence – passenger in vehicle driven by intoxicated driver injured – whether relevant risk of harm to passenger was of injury as a result of travelling in vehicle with mildly intoxicated driver – whether reasonable person in passenger’s position would have taken precaution of declining to travel with driver – whether primary judge erred in finding no reduction of damages for contributory negligence – just and equitable reduction where passenger 16 years old, actual or constructive knowledge of extent of driver’s impairment was that it was mild and driver intentionally drove vehicle partly off the roadway, thereby causing accident

TRADE PRACTICES – misleading and deceptive conduct under Trade Practices Act 1974 (Cth) – whether misrepresentations made in quotation for supply of an alternator as to compatibility with existing equipment – where quotation not accepted – technical information provided in respect of machinery subject of quotation – misrepresentations to be assessed in context of dealings between parties TRADE PRACTICES – misleading and deceptive conduct under Trade Practices Act 1974 (Cth) – causation – whether legal causation established – dependent on purpose of statute as related to the circumstances of the particular case DAMAGE – misleading and deceptive conduct – no strict requirement to prove a “no transaction” or “different transaction” case EVIDENCE – expert evidence – UCPR, r 31.28 – party seeking to rely on another party’s expert report – report must be “served back” – exceptional circumstances required for the grant of leave if party has not “served back” – UCPR, r 31.28(4)(a)

TORTS – negligence – duty of care – public authority –breach of duty – where plaintiff cyclist seriously injured when she fell over low guard rails of wooden bridge after the front wheel of her bicycle became stuck in a gap between the planks of the bridge – whether primary judge correctly identified risk of harm for the purposes of s 5B, Civil Liability Act 2002 (NSW) TORTS – negligence – duty of care – whether risk of harm that materialised an “obvious risk” within Civil Liability Act 2002 (NSW), s 5F(1) such that public authority did not owe plaintiff duty of care to warn of it –whether public authority required to establish plaintiff voluntarily assumed obvious risk before Civil Liability Act 2002 (NSW), s 5H applied TORTS – negligence – whether erection of warning sign involved exercise of a “special statutory power” for purposes of Civil Liability Act 2002 (NSW), s 43A TORTS – negligence – breach of duty – standard of liability – Civil Liability Act 2002 (NSW), s 43A – whether failure to erect sign warning cyclists of danger bridge posed an omission no public authority could properly consider a reasonable exercise of its power TORTS – negligence – breach of duty – whether public authority had actual knowledge of risk bridge posed to cyclists TORTS – negligence – breach of duty – s 42(b), CLA –whether plaintiff’s contention public authority breached duty of care in not taking other precautions in relation to the bridge surface a challenge to public authority’s general allocation of resources

CORPORATIONS – winding up – liquidators – appeal from liquidator’s decision under (CTH) Corporations Act 2001, s 1321 – where time for filing appeal expired – whether time should be extended – where question arising is arguable – where no prejudice caused – where delay explainable – whether relief sought is premature or inutile. COMMERCIAL LAW – personal property securities – (CTH) Personal Property Securities Act 2009 (“PPSA”) – whether retention of title clause or express grant of security interest in terms and conditions bind first defendant – whether plaintiff’s unilateral variation of terms and conditions bind first defendant – where express right to vary terms and conditions in contract – whether first defendant’s operations manager had authority to bind first defendant to amended terms and conditions – held, first defendant bound – whether plaintiff has a perfected PPSA security interest – whether security interest attached to particular collateral – whether security agreement covered particular collateral – whether security interest with respect to particular collateral perfected by registration.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application for order convening meeting of members to consider scheme of arrangement – whether scheme fair and reasonable – whether independent expert’s report understates company’s value and renders scheme more attractive – whether scheme sufficiently explained – inclusion of “no shop” and “no talk” exclusivity provisions – inclusion of break fee – performance risk – requirement of amending scheme booklet to include notice of second court hearing and information regarding instructions for opposing scheme.