Cases and authorities

PROCEDURE – civil – application for leave to rely on additional expert reports – where non-compliance with directions previously made – application of overriding efficiency principles

EVIDENCE – expert evidence – whether contents of expert report are admissible – whether pre-trial ruling should be made – whether admissibility of expert report is supported by existence of “exceptional circumstances”

APPEAL – appeal from Local Court – damages – aggravated damages - torts – trespass to land APPEAL – costs – leave to appeal - application of Local Court Practice Note Civ 1 – application of s3B Civil Liability Act 2002 – indemnity costs

CRIMINAL LAW – sentencing – murder – aiding and abetting – serious offence – aggravating and mitigating factors – use of weapons – offence committed in company – remorse demonstrated – good prospects of rehabilitation – special circumstances

COSTS – Appeal from decision of magistrate to allow the prosecution to re-open their case after decision reserved – Application to re-open arose from DNA evidence becoming available which had not been available to the prosecutor previously – Whether the proceedings on appeal were ‘criminal’ or ‘civil’ – Whether departure from general rule that costs follow the event warranted – Contention by the plaintiff that the conduct of the prosecutor in the Local Court proceedings was so linked to the appeal proceedings that he should be disentitled to costs – Held that the appeal proceedings in this Court were distinct from the proceedings below – Defendant had not engaged in any disentitling conduct during the appeal proceedings – Conduct of parties below could be taken into account by the Local Court in its own exercise of discretion in relation to costs – Held that the defendant was entitled to the costs order he sought – Lump sum costs order made

COSTS – application for itemised bill of costs from solicitors – s 728 Legal Profession Act 2004 – application for costs assessment under s 350 of the Act – where application made more than 12 months since issue of invoice – where plaintiffs not aware of right to challenge costs earlier – adequate explanation by plaintiffs for lapse in time – no prejudice to defendants if orders made

PROCEDURE – application to amend statement of claim – dismissed CONTRACTS – construction of employment contract – whether breach of restraint of trade – ordinary and natural meaning of clauses – consideration of contra proferentum principle – plaintiffs’ claim for breach fails – observation that first defendant had no intention to contravene restraint – not appropriate to issue injunction to restrain trade – first defendant a credible witness – whether breach of confidentiality agreement – information disclosed by first defendant was of a general nature and reasonable – no breach of confidence to former employer/plaintiffs

EQUITY – interests – priorities – distribution of funds paid into Court – where funds paid into Court are surplus funds following sale of mortgaged property pursuant to s 95 of Trustee Act 1925 (NSW) – where three competing claims made on fund – where each debtor applicant disputes existence and priority of equitable interest claimed by the other

SUCCESSION – Making of a will – Informal will - DVD recording intended to be codicil to a will – Meaning of “document” – Succession Act 2006 NSW, s3(1) - Interpretation Act 1987 NSW, s21 SUCCESSION – Wills and codicils – Making of a valid will – Formalities for making will –Interested witness attesting will – Effect – Succession Act 2006 NSW, s10

ADMINISTRATIVE LAW – judicial review – workplace injury – assessment by medical assessor – appeal to Medical Appeal Panel – permanent impairment - assessment of pre-existing condition – whether adequate reasons provided for assessment and deduction – whether conclusion unreasonable – whether deduction based on assumption or hypothesis - whether pre-existing condition too difficult to assess – whether statutory 10% deduction at odds with the evidence

CRIMINAL LAW – appeal – sentencing – whether specific error established – whether sentence manifestly excessive

PROCEDURE – stay of execution of writ of possession pending application for leave to appeal – whether arguable grounds established – absence of arguable defence – whether arguable claim of procedural unfairness in not allowing applicant to appear with lay advocate PROCEDURE – application to appear by lay advocate – whether party unable adequately to present own case – whether conflict of interest between advocate and applicant

CORPORATIONS – winding up – stay of winding up proceedings – where stay sought to enable recovery of property which would return company to solvency – more appropriate to appoint administrators and execute deed of company arrangement – stay sought essentially to permit company to continue trading in insolvency – held, stay denied.

CIVIL PROCEDURE – application for summary dismissal - no point of principle

EVIDENCE – application under the Evidence on Commission Act 1995 (NSW) – civil proceedings on foot in Republic of Altai – applicant seeking production of documents relating to a motorcycle and bank account – leave granted to issue and serve subpoenas to produce

CRIMINAL LAW - BAIL – bail pending appeal – special or exceptional circumstances – fraud – unusual case – substantial overdraft through bank error – lengthy delay between trial and appeal – transcripts of trial not available – conditional bail granted

REAL PROPERTY – possession of land – application to stay execution of writ for possession – possibility of refinance – execution of writ for possession stayed

PROCEDURE – civil – application to vacate hearing date – where second such application brought – whether vacating hearing date would be in accordance with the dictates of justice.

PRACTICE AND PROCEDURE – application for referral to pro bono panel for legal assistance – application not opposed – whether referral is in the interests of the administration of justice – whether other pre-conditions established

EQUITABLE REMEDIES – resulting trust – presumption of advancement – constructive trust – failure of joint endeavour – plaintiff purchased property for her son – property transferred to son and his wife – purchase made for the purpose of the son’s building a house on the land for the plaintiff and her daughter to live in – son did not build any house – relations within the family broke down – held that the presumption of advancement was rebutted as the intention to advance was conditional on the property’s being used to build a house for the plaintiff and her daughter, so that the property was held on trust upon failure of the condition, and alternatively a Baumgartner v Baumgartner constructive trust arose upon failure of the parties’ joint endeavour EQUITABLE REMEDIES – resulting trust – Quistclose trust – plaintiff paid money into a newly opened bank account held by her son and his wife – money was to be used by the son to build a house for the plaintiff – son and his wife made unauthorised withdrawals of most of the money prior to a freezing order being made – held that the money was paid under a common intention Quistclose trust, that the bank account was held on a resulting trust for the plaintiff when the purpose of the payment failed, and that the son and his wife are liable to restore the trust funds

FAMILY LAW AND CHILD WELFARE — surrogacy — application for parentage order under Surrogacy Act 2010 (NSW) in relation to child of a surrogacy arrangement entered into after the commencement of Act — application by de facto couple — Court may make parentage order upon compliance with preconditions provided by the Act and by UCPR Pt 56A — satisfaction of certain preconditions — relevant preconditions specified are mandatory — other non-mandatory preconditions may be waived if exceptional circumstances exist — many requirements of the Act have not been satisfied by applicants – applicants permitted to provide further evidence

PRACTICE AND PROCEDURE – application for interlocutory injunction – plaintiff charged with obtaining property by deception and using a carriage service to make threats – search warrant executed –property seized – declaration sought that search warrant was executed unlawfully – whether seized property should be entered into the custody of the Supreme Court until proceedings determined

PRACTICE AND PROCEDURE – subpoenas to produce documents – whether subpoenas should be set aside – whether subpoenas have a legitimate forensic purpose – whether subpoenas are too broad – subpoenas quashed

CIVIL PROCEDURE - application for summary dismissal – whether the right to bring proceedings divested from the trustee upon discharge from bankruptcy

CIVIL PROCEDURE – application for summary dismissal – whether the right to bring proceedings divested from the trustee upon discharge from bankruptcy – whether advocate’s immunity applies – whether claims time barred

CORPORATIONS – voluntary administration – administrators apointed without prior approval required by s 41 of the Registered Clubs Act 1976 (NSW) (the Act) – consideration of Correa v Whittingham – circumstances of the plaintiff considered by the court – held that the court should appoint the same administrators under s 41 of the Act from a new date of appointment CORPORATIONS – voluntary administration – s 448C(1)(b) of the Corporations Act 2001 (Cth) – potential conflict of interest – undertaking given by administrators not to claim payment for work executed when invalidly appointed – leave granted

CRIMINAL LAW – Evidence – Application by Crown for view of locations relevant to the Crown case – Where view would assist the jury in understanding the evidence – Where application supported by both accused – Application granted

CRIMINAL LAW – Evidence – Claim for client legal privilege – Where witness made a statement to the police – Where contents of statement made reference to legal advice provided to the witness in association with criminal charges brought against him – Where contents of the statement made reference to the charges having been the subject of discussion between the witness and his lawyers - Whether privilege lost

CRIMINAL LAW – Application to appeal against sentence on two grounds – Pleas of guilty entered to three drug supply offences – Principle of parity – Whether sentence imposed gave rise to a justified sense of – Whether marked disparity between sentence imposed on applicant and sentence imposed on co-offender – Whether the starting point for the applicant’s sentence was too high in comparison to her co-offender – Co-offender was sentenced for different offences and charges on a Form 1 – No error demonstrated in sentencing judge’s determination of starting points – First ground dismissed – Whether discount of 12.5% for applicant’s plea of guilty gave rise to justified sense of grievance in circumstances where co-offender had received discount of 17.5% for his plea – Disparity arose in discounts for guilty pleas – Applicant entitled to equivalent discount of 17.5% – Second ground of appeal allowed – Sentence quashed – Applicant re-sentenced to reflect appropriate discount

APPEAL – federal offences – Director’s appeal against sentence – manifest inadequacy of sentence as only ground of appeal – respondent sentenced to 8 years imprisonment with a non-parole period of 5 years for drug importation – no guilty plea or other significant mitigating factors – head sentence lenient but not below available range – non-parole period within appropriate range – principles related to prosecution appeal – whether sentence affected by error in point of principle – discretionary considerations where Director’s approach to appropriate sentence inconsistent in comparable case – Criminal Appeal Act 1912 (NSW), s 5D(1) CRIMINAL LAW – sentencing – federal offences – discount for guilty plea – applicability of state and territory laws and practices to discounts for guilty plea in sentencing for federal offences – whether such laws picked up by Judiciary Act 1903 (Cth), ss 68, 69 or 70 – Cameron v The Queen [2002] HCA 6; 209 CLR 339 discussed – Crimes Act 1914 (Cth), s 16A CRIMINAL LAW – sentence appeal – prosecution appeal – manifest inadequacy alleged – both parties relied on sentences in similar cases – utility of comparative exercise with previous sentences

CRIME - interlocutory appeal from trial judge’s dismissal of applications to quash indictment and for a permanent stay - applicant was sued in civil proceedings for fraud - applicant defended the civil proceedings and was cross-examined - civil proceedings settled by judgment against applicant and admission of theft, stealing, embezzlement, defalcation or misappropriation - materials sent to police and applicant charged with offences under Crimes Act 1900 (NSW) ss 176A and 192E - whether s 556(2) of Crimes Act prevented prosecution - whether applicant charged with offences of which he “might have been convicted summarily without consent under this Act” - whether applicant was charged “on the information” of the plaintiff in the civil proceedings - whether unacceptable injustice or unfairness in prosecution based in part on evidence obtained in civil proceedings - appeal dismissed

CRIMINAL LAW – conviction appeal - conspiracy to defraud the Commonwealth of tax revenue under s 86(1) and s 29D of the Crimes Act 1914 (Cth) – conspiracy to dishonestly cause a loss or deliberately cause a risk of loss to the Commonwealth of income tax under s 135.4(5) of the Criminal Code Act 1995 (Cth) – proving the requisite state of affairs for conspiracy – stages of a conspiratorial agreement CRIMINAL LAW – conviction appeal - whether trial judge erred in failing to direct jury to acquit at close of Crown case – whether verdict unreasonable or could not be supported by evidence CRIMINAL LAW – conviction appeal – whether misdirection in summing up to jury – whether misdirections on unreliability under s 165(1)(d) Evidence Act 1995 (NSW) – whether misdirection in clearly identifying the knowledge, belief or intent said to render conduct dishonest – whether misdirection on co-accused giving evidence – whether misdirection on treating the evidence of witnesses with caution CRIMINAL LAW – sentencing appeal – whether error in assessing objective seriousness of offence – whether disparity between sentence of appellant and co-accused gave rise to justifiable sense of grievance – whether sentence manifestly excessive – whether adequate regard had to sentences imposed in other cases

APPEAL – appeal from Civil and Administrative Tribunal – error conceded – whether court should remit or finally dispose of the matter – Supreme Court Act 1970 (NSW), s 75A; Civil Procedure Act 2005 (NSW), s 56 LEGAL PRACTITIONERS – solicitor failed to pay counsel’s fees – complaint referred to the Law Society for investigation –reprimand under s 540 of the Legal Practitioners Act 2004 (NSW) issued – whether s 540 procedure was available to the Law Society – whether it was reasonably likely that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct – whether practitioner generally competent and diligent – whether reprimand preferable penalty WORDS AND PHRASES – “reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct” – Legal Profession Act 2004 (NSW), s 540(1)(b)(i)

COURTS – judges – recusal application – reasonable apprehension of bias – association with complainant – whether substantial – whether connection with matters to be decided

CRIMINAL LAW – proceeds of crime – application for restraining orders – contents of trading accounts suspected of being the proceeds of an indictable offence – ex parte application – restraining orders made

CRIMINAL LAW – murder – self-defence or defence of another – beliefs about deceased – evidence about aspects of deceased’s character or behaviour – whether tendency evidence – whether evidence makes less improbable beliefs and actions of accused

CRIMINAL LAW – joint criminal enterprise - evidence – relevance – background evidence – crown opening – whether evidence encompassed by crown opening – hearsay – statement by deceased

TORT – professional negligence - solicitor acting for purchaser of rural property – land in vicinity of property subject to proposed quarry development - whether solicitor failed to advise plaintiff to make enquiries regarding possible development on neighbouring properties – whether solicitor had obligation to ensure that client had conducted enquiries – whether plaintiff would have purchased property regardless of advice – negligence not established – causation not established DAMAGES - whether any loss having regard to Potts v Miller– no damage suffered

CORPORATIONS – winding up – creditors’ voluntary winding up – application for appointment of special purpose liquidator – significant creditor presents cogent case for investigation of dealings in period before the creditors’ voluntary winding up – creditor lacks confidence in existing liquidator – creditor willing to fund investigations for special purpose liquidator – held that appointment of special purpose liquidator would be beneficial to the administration of the winding up – court has jurisdiction to appoint – order sought under s 477(2B) granted

DEFAMATION – procedure – pleadings – imputations – capacity – requirement for imputations to differ in substance – requirement of precision

CORPORATIONS LAW – deed of company arrangement (DOCA) – related company forgives portion of debt in return for an issue of shares – effect is to dilute interests of minority shareholders – whether the administration and execution of the DOCA involved an abuse of Pt 5.3A of the Corporations Act 2001 (Cth) – whether relief should be granted under s 447A having regard to the financial position of the company after termination of the administration – whether injunctive relief should be granted under s 1324

SUCCESSION – whether computer documents created by the deceased were intended by him to be or to operate as his will.

WORKERS COMPENSATION - respondent injured at party held on work premises - whether injury arose out of employment - whether injury arose in course of employment - respondent awarded compensation in Workers Compensation Commission by presidential member - injury found to have arisen in course of employment - injury found to have arisen out of employment - appeal from decision of presidential member - appeal limited to appeal in point of law - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) APPEAL - whether Workers Compensation Commission erred in point of law in finding injury arose in course of employment - Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 - Comcare v PVYW [2013] HCA 41; 250 CLR 246 - whether Workers Compensation Commission erred in point of law in finding injury arose out of employment APPEAL - whether Workers Compensation Commission erred in determining terms and conditions of employment by reference to respondent’s subjective perception - employer defines the terms of employment, Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 - Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 - appeal allowed

APPEALS – appeal from decision of registrar – where registrar refused to adjourn winding up – whether “appeal” or “review” of registrar’s decision – where final winding up order must be impugned to challenged interlocutory order not to adjourn winding up – leave to appeal in company’s name – appeal by way of rehearing – availability of fresh evidence; CORPORATIONS – winding up – adjournment of winding up – (CTH) Corporations Act 2001, s 440A – whether in interests of creditors that administration continues – where administrator’s s 439A report expresses preference for deed of company arrangement over liquidation – where company has no assets and is no longer trading – where no evidence of ability to fund payments to creditors under proposed deed – where payments partly guaranteed – where greater likely return to creditors from winding up – held, appeal against decision not to grant adjournment dismissed.

PRACTICE AND PROCEDURE – application for summary dismissal – res judicata – Anshun estoppel – setting aside consent orders – plaintiff previously sought to have consent orders in an earlier proceeding set aside by way of notice of motion – notice of motion was dismissed – whether dismissal of notice of motion was a dismissal on the merits - plaintiff commenced current proceeding seeking to have those consent orders and the underlying contracts set aside – whether it was unreasonable not to seek to have the underlying contracts set aside in the earlier notice of motion – whether defence of res judicata or Anshun estoppel bound to succeed – application dismissed PRACTICE AND PROCEDURE – application for a stay pending satisfaction of a costs order in a related proceeding – applicant has not yet sought an assessment of those costs – application refused

REAL PROPERTY – possession of land – application to stay execution of writ for possession – extension of time for departure granted on previous occasions - potential eviction of disabled person from publicly provided housing – execution of writ for possession stayed

COSTS – indemnity costs – orders sought in motion ultimately consented to – whether the plaintiff is entitled to indemnity costs of the motion – costs awarded on the ordinary basis

ADMINISTRATIVE LAW – judicial review – certiorari – irrelevant considerations of decision maker – ss 57 to 65 Motor Accidents Compensation Act 1999 - Permanent Impairment Guidelines – unreliable witness – failure to perform statutory duty – failure to give reasons – whether assessment should be invalidated

CRIMINAL LAW – proceeds of crime – proceeds assessment order obtained by the New South Wales Crime Commission – whether the NSW Trustee and Guardian should be permitted to sell real and personal property pursuant to the assessment order – whether the NSW Trustee and Guardian should have vacant possession of the property – whether occupation fee should be paid

SUCCESSION – FAMILY PROVISION – The Plaintiff, a grandchild 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, to whom Probate was granted – Extension of time for making Plaintiff’s application required – Dispute that Plaintiff is an eligible person – Dependency in issue – Whether there are factors which warrant the making of his application – Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision to be made for the Plaintiff – How burden of the provision is to be borne