Cases and authorities

CRIMINAL LAW – non publication

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – fitness hearing – application to postpone delivery of judgment – application not granted

EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – fitness hearing – Mental Health (Forensic Provisions) Act – Act does not apply to contempt proceedings – whether defendant is fit to be tried – does the defendant suffer a relevant mental condition – defendant found fit to be tried – hearing to proceed

BUILDING AND CONSTRUCTION – adjudication determinations – whether adjudicator failed to decide an essential element of contractor’s claim – where principal claimed liquidated damages for delay, and took cash security to set-off those damages – where contractor claimed that extent of delay was reduced by extensions of time that it was or should have been allowed – where an earlier adjudication determination had found that principal’s entitlement to liquidated damages was nil – where that position was re-affirmed in the present adjudication determination – result that it was unnecessary to decide contractor’s submission as to extensions of time – consequence that adjudicator decided all that was necessary for the determination under review – alternative issue estoppel argument does not arise BUILDING AND CONSTRUCTION – adjudication determinations – error of law on the face of the record – unavailability as a ground of review for determinations of adjudicators BUILDING AND CONSTRUCTION – adjudication determinations – whether enforcement of statutory right can be restrained by permanent injunction – whether superintendent’s certificate later issued, determined final rights of parties – where that certificate issued under a contractual clause which discharged liability only in relation to termination itself – whether liability in other respects discharged – consequence that both the statutory right to enforce the adjudication determination, and the contractual right to enforce the superintendent’s certificate, remain available to the parties

ADMINISTRATIVE LAW – judicial review – error of law – criteria for review – whether proper authority of Motor Accidents Authority (NSW) made error by referring medical assessor’s assessment to review panel – Motor Accidents Compensation Act 1999 (NSW), s 63 WORDS AND PHRASES – “apparent, substantial or total” – whether “apparent” adds emphasis or refers to degree of impairment – increase of percentage of whole person impairment applicable– Motor Accidents Authority Permanent Impairment Guidelines, cl 1.28 – Motor Accidents Compensation Act 1999 (NSW), s 63

CRIMINAL LAW – appeal – sentence – knowingly take part in supply of prohibited drug – single ground of appeal – whether sentence manifestly excessive – appeal dismissed

CRIMINAL LAW – appeal – sentence – supply prohibited drug – guilty plea – aggregate sentence imposed – where two similar offences with identical indicative sentences – whether ‘blanket assessment’ – whether error in use of applicant’s prior offending – leave to appeal refused

CRIMINAL LAW – appeal – sentencing – where applicant sentenced by same judge on same day for entirely separate offences – judge publishing two separate judgments – inconsistent findings as to subjective case – whether truncation of remarks resulted in failure properly to apply principle of totality

CRIMINAL LAW – appeal against sentence – comparable sentence decisions – sentencing judge having regard to comparables subsequently reconsidered

CRIMINAL LAW – appeal against sentence – Drug Court – aggregate sentence for summary offences and one indictable offence – initial sentence – final sentence on termination of Drug Court Program

PRACTICE AND PROCEDURE – application for leave to appeal against ex parte search order – where underlying proceedings relate to enforceability of legal costs agreements – where amount at issue in underlying proceedings not significant – where no utility in pursuit of appeal – leave to appeal refused

EQUITY - Application for the Court to set aside consent orders made in the settlement of family provision claims - Subsequent family provision claim by another family member brought within time - No basis for setting aside orders established - Application refused

BARRISTERS – criminal trial – application to return brief to defend a charge of a serious criminal offence – where barrister concerned about payment of outstanding fees and fees to be incurred for the trial – delay in application to return brief – where trial due to commence in two working days – where insufficient time for another legal practitioner to take over the case properly before the hearing – where client does not consent to the application – application refused

CORPORATIONS – RECEIVERS AND MANAGERS – Corporations Act 2001 (Cth) s 420A – duties of receivers and managers in exercising a power of sale or otherwise dealing with property of a Corporation – obligation to obtain the market value or best price reasonably obtainable in the prevailing circumstances – obligation not to act wilfully or recklessly or sacrifice the interests of a mortgagor – complaint that receivers failed to sell property of a mortgagor company, being lighting, showerheads and insulation products useable in energy conservation schemes, at market value or for the best price reasonably obtainable – complaint that receivers sacrificed the interests of the mortgagor in settling an insurance claim for damage to insulation batts at an undervalue – position of guarantor of the debt owed by the mortgagor – HELD: Complaints not established – mortgagee entitled to judgment against guarantor

CRIMINAL LAW – Statutory construction – Director of Public Prosecutions Act 1983 (Cth) s. 6(1)(m) – Power of the Commonwealth Director of Public Prosecutions to prosecute offences against laws of the State of NSW where charges have been laid by some other person – Whether the power of the Commonwealth Director to prosecute charges for offences against a law of a State is limited to prosecuting those charges which the Commonwealth Director himself has brought WORDS AND PHRASES – “institute and carry on” – “carry on” – “conduct”

PRACTICE AND PROCEDURE – representative proceedings – validity of opt out notices – where Insurers opted insureds out from existing proceedings – whether solicitor had authority to file opt out notices on behalf of insureds – whether insurer can commence proceedings in name of insured without authority – PRACTICE AND PROCEDURE – representative proceedings – standing – definition of group member in Insurers proceedings excludes an individual from being a member in both proceedings – where plaintiff in initial proceedings not opted out by Insurers – whether standing to bring motion and obtain relief sought – whether interference in Insurers proceedings by ‘stranger’ not part of proceedings – plaintiff represents interests of whole group – s 158(3) Civil Procedure Act – that plaintiff not personally opted out does not reduce his standing to contest validity of the opt out notices – CONTRACT – construction – insurance contracts – assignment of rights – whether assignment of insured’s right to insurer – need for explicit contractual basis for insurer to have authority to discontinue an insureds participation in existing proceedings – EQUITY – subrogation – rights of insurers – whether right to recover uninsured losses – STATUTORY INTERPRETATION – scope and application of s 183 Civil Procedure Act 2005 – general power of court to make any order appropriate or necessary to do justice – whether power broad enough to make orders sought – CONSTITUTIONAL LAW – whether Court engaged in an exercise of judicial power arising under Ch III of the constitution – meaning of ‘matter’ – whether matter of legitimate and real controversy – issues raise a matter such that the Court can legitimately exercise Federal jurisdiction – Court not precluded from determining relief sought

CONTRACT – construction – whether a clause of a deed providing for the repayment of a loan should be construed as limiting the funds from which such repayment would be made

EQUITY – appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) – whether order appointing trustees would be inconsistent with a contractual right to exclusive possession – whether primary judge addressed arguments made as to enforceability and construction of contract contended for

CRIMINAL LAW – admissibility of covertly recorded conversations with an undercover officer – whether evidence capable of amounting to evidence of consciousness of guilt and/or admissions under s 85 of the Evidence Act – discretionary exclusion under ss 90, 135 and 137 of the Evidence Act

PROCEDURE – civil – admissibility of question asked in cross examination – whether question is relevant and fair

PROCEDURE – civil – application for leave to ask questions in response evidence of plaintiff – where questions sought to be asked were not the subject of evidentiary statement of second defendant – modern case management practices

PROCEDURE – civil – admissibility of paragraph of witness statement

PROCEDURE – civil – admission of certain questions and answers from a record of interview – application of s 87(1)(b) Evidence Act 1995 (NSW) – whether prejudicial value outweighs probative value

BANKRUPTCY – provable debts – contract between builder and developer contains warranties implied by Home Building Act 1989 (NSW) – builder becomes bankrupt – claimant owners corporation a successor in title to developer – claim by owners corporation against builder for damages for loss suffered by reason of breach of statutory warranties – whether a debt or liability provable in the bankruptcy – whether a debt or liability released upon discharge from bankruptcy – whether claim a demand arising “otherwise than by reason of a contract or promise” within s 82(2) Bankruptcy Act 1966 (Cth) CONSTRUCTION LAW – Home Building legislation – statutory warranties – claim by successor in title to developer in respect of statutory warranties – builder becomes bankrupt and is subsequently discharged from bankruptcy – whether claim by successor in title a debt or liability provable in the bankruptcy – whether claim a debt or liability released upon discharge from bankruptcy – Home Building Act 1989 (NSW) ss 18B and 18D INSURANCE – Home Owners Warranty insurance – claim for indemnity for loss or damage arising from breach of statutory warranties – claim against contractor a debt or liability released upon contractor’s discharge from bankruptcy – claim for indemnity made after the discharge from bankruptcy – whether claimant cannot recover compensation from contractor “because of the insolvency” of contractor

CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – whether starting point of 12 years manifestly excessive – principles of sentencing for drug importation offences – application of guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 – relevance of quantity of drug - where applicant’s role greater than that of mere courier – no manifest excess established in starting point or resulting sentence CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – where arithmetical error in applying discount for guilty plea and assistance conceded – re-exercise of sentencing discretion – total discount increased to 50 per cent – applicant re-sentenced

BAIL – detention application – show cause offence – cause shown why detention is not justified – assessment of bail concerns

CRIMINAL LAW – appeal against sentence – ongoing supply prohibited drugs – whether De Simoni principle applicable – distinction between particular of commission of offence and circumstance of aggravation CRIMINAL LAW – appeal against sentence – principle of totality

CORPORATIONS – winding up – liquidators –application for leave by administrators to be appointed as liquidators – appointment of plaintiff’s nominee as starting point – duplication of work in appointing liquidator – where company used voluntary administration to delay inevitable liquidation and to divest assets to related entities – where possible association of administrators with directors may undermine administrators’ independence and impartiality in liquidation; PROCEDURE – costs – whether costs of administrators’ application to be appointed as liquidators to be treated as costs in administration – where administrators did not impugn independence of plaintiff’s nominee – where administrators did not engage in dispute between creditors – reasonableness of application

COSTS – whether order for costs should be deferred until conclusion of fresh proceedings – no basis for deferral shown – costs ordered on indemnity basis from day after expiry of Calderbank offer – no question of principle

PRACTICE AND PROCEDURE – civil – summons - plaintiff seeking account information from bank – preliminary discovery – whether the proceedings are frivolous and vexatious – absence of evidence - plaintiff’s refusal to file a statement of claim and supportive documentary evidence

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – whether final supervision order should be made – unacceptable risk of committing a serious violence offence established – disputed conditions – extended supervision order for 3 years – conditions imposed

Bail application – show cause – unacceptable risk

CRIMINAL LAW – appeal – application for extension of time to appeal against conviction – previous appeal against conviction on different count on same indictment – where the Court has no jurisdiction to hear and determine the appeal

APPEAL - personal injury - motor vehicle accident - collision between truck and motorcycle - one party on wrong side of road - limited lay evidence as to which party on incorrect side - liquid from motorcycle on road - plaintiff failed to prove defendant on wrong side of road EVIDENCE - expert evidence - exclusion of expert opinion - Evidence Act 1995 (NSW), s 79(1) - opinion based on specialised knowledge – training, study or experience - whether trial judge erred in rejecting portions of expert report - unduly narrow approach taken by trial judge - expertise enables a person to extrapolate from general to particular - opinion wrongly excluded - matter remitted to District Court for new trial DAMAGES - whether trial judge erred in quantification of future economic loss - Motor Accidents Compensation Act 1999 (NSW), s 126 - whether appellant would have been able to return to engineering career following absence of 15 years - extent of impairment to earning ability cannot be accurately quantified - buffer allowed by trial judge appropriate

EQUITY - Corporations - Application for Directions - Contract to Sell Land - Conditions Precedent to the Sale Contract - Unpaid Vendor Contributions - Debt has not Accrued - The Difference between a Debt Accruing and an Obligation being Incurred

TRANSFER OF PROCEEDINGS – defendant motion to transfer proceedings to Victorian Supreme Court – matter then to be transferred to county court of Victoria in Mildura – main issue is location of witnesses – some witness in Mildura to be called regarding particular issue but exaggeration of number – no evidence that witness would be inconvenienced – not in interests of justice to transfer proceedings

EQUITY - Application to strike out defences and cross claim - Defendants failure to file evidence and appear - Defences and cross claim struck out

COSTS – Plaintiff recovers considerably less than amount sued for and less than $500,000 – Liquidated amounts all within jurisdictional limit of District Court but claim for account possibly exceeded limit – UCPR Pt 42 r 42.34 – District Court Act 1972 (NSW) ss 44(1)(c), 134(1)(h)

CRIME – contempt of court – contemnor called as a witness in disputed facts hearing for murder– witness refused to take oath or affirmation - physical threats to court staff – considerations on sentence

CRIMINAL LAW – Where counsel for accused given leave to withdraw from proceedings – Where accused left without counsel as a consequence – Necessity to vacate trial date – Referral of conduct of counsel to the Registrar with a direction that advice be obtained as to whether there has been a contempt of Court

COSTS – judgment entered in favour of plaintiff – grounds notified in summons amended by plaintiff on date of hearing – whether costs should follow the event – whether the plaintiff should pay the costs of the subsequent costs hearing

TORTS – negligence – personal injury – school – game played in PE class – construction of the Civil Liability Act 2002 (NSW) – whether proceedings were brought within time – Jones v Dunkel inferences – scope and nature of duty of care owed by school to student – no breach – risks posed by game played on asphalt surface – reasonable care – reliability of evidence – supervision and instructions – causation – expert evidence – claim dismissed – costs

STATUTORY INTERPRETATION – principles – legal assumptions – non-alteration of common law doctrines - principle of legality – privilege against self-incrimination – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus and cannot compel accused to assist it – whether the ASIC Act permitted provision of the transcript of an accused’s examination under s 19 to persons involved in prosecuting the accused CRIMINAL LAW – procedure – interlocutory orders – application for temporary stay of proceedings – whether a temporary stay of proceedings should be granted pending the appointment of a new prosecution team where an examination transcript under s 19 of the ASIC Act had been provided to the prosecution team

CRIMINAL LAW – Appeal – conviction – evidence – admission – exclusion of prejudicial evidence under s 137 of the Evidence Act 1995 (NSW) – relevance - whether trial judge erred in admitting certain evidence CRIMINAL LAW – Appeal – conviction – miscarriage of justice – whether miscarriage of justice arising from failure to properly direct jury as to elements of conspiracy CRIMINAL LAW – conspiracy under ss 307.11 and 11.5 of the Criminal Code 1995 (Cth) – elements – whether jury must be directed that during the currency of the conspiracy, the accused and one other conspirator actually believed, at the same time, that another person intended to use the substance to manufacture a controlled drug CRIMINAL LAW – Appeal – conviction – whether there was an error in failing to dismiss the jury following a note setting out concerns as to the length of the trial CRIMINAL LAW – Appeal – conviction – miscarriage of justice – whether misdirection in summing up to jury – whether summing up unbalanced or unfair CRIMINAL LAW – Appeal – sentencing – sentencing for multiple offences - cumulation, concurrence and totality - whether sentence manifestly excessive, unreasonable or plainly unjust

TORT – where parents of child born through in vitro fertilisation not given correct genetic information prior to IVF procedure – where child born with genetic disorder – where child suffers permanent disability as a result of stroke four days after birth TORT – claim for infringement of right to plan family – whether claim for pure economic loss NEGLIGENCE – duty of a medical practitioner – content and scope of duty – provision of information – duty to refer NEGLIGENCE – causation – normative aspects – where risks of different adverse medical events are distinct NEGLIGENCE – remoteness – whether harm within the scope of duty – whether harm reasonably foreseeable APPEAL – challenge to findings of fact – appellate restraint – where findings made by reference to both objective circumstances and matters subjective to witnesses

CRIMINAL LAW – admissibility – DNA evidence – addendum to R v Xie (No 18)

CORPORATIONS – winding up – just and equitable ground – irretrievable breakdown of relationship of partners in incorporated quasi-partnership – where winding up application not contested; PROCEDURE – costs – application for plaintiff’s costs to be paid by third defendant – plaintiff’s entitlement to costs under (CTH) Corporations Act 2001, s 466(2) – whether costs incurred due to third defendant’s unreasonable conduct – general approach upon winding up of partnerships that costs be paid out of assets of partnership.

PRACTICE AND PROCEDURE – longstanding dispute regarding block of flats – proceedings on foot in Local Court and Supreme Court – whether Local Court proceedings should be stayed until Supreme Court proceedings are resolved – defendant not opposed to stay COSTS – ex parte application – no notice given to defendant – application unnecessary because of consent of defendant to orders sought – whether the plaintiff should pay the costs of the hearing

CRIMINAL LAW – proceeds of crime – application for forfeiture under s 49 of the Proceeds of Crime Act 2002 (Cth) – large sums of cash transferred into a particular bank account – restraining order made on previous occasion – whether forfeiture order should be made – whether the Commonwealth should have leave to dispose of or otherwise deal with the property in question