Cases and authorities

CRIMINAL LAW – appeal against conviction – appellant convicted by jury of dishonestly obtaining a financial advantage by deception contrary to the Crimes Act 1900 (NSW), s 178BA(1) and using a false instrument contrary to the Crimes Act 1900 (NSW), s 300(2) CRIMINAL LAW – appeal – where verdict alleged to be “unsafe and/or dangerous” – Criminal Appeal Act 1912 (NSW) s 6(1) – whether verdict “unreasonable, or cannot be supported, having regard to the evidence” CRIMINAL LAW – whether trial judge erred in failing to discharge jury exposed to prejudicial evidence – whether miscarriage of justice EVIDENCE – challenges to admissibility – Evidence Act 1995 (NSW) ss 55, 137 EVIDENCE – voice identification evidence – where witnesses participated in voice identification parade – where differences in recording of appellant’s voice and recordings of sample voices were attributable to method of recording and production EVIDENCE – visual identification evidence – where witnesses in better position than jurors to make visual comparison EVIDENCE – expert handwriting recognition evidence – circumstantial evidence that accused wrote comparator sample documents SENTENCING – appeal against sentence – whether non-parole period manifestly excessive – whether excessive weight placed upon principle of specific deterrence

CRIMINAL LAW – application under r 50C of the Criminal Appeal Rules (NSW) – nature of the application – not rehearing of appeal – matters capable of correction

CRIMINAL LAW - Criminal Code (Cth), s 400.9 - money laundering - notice of motion seeking indictment be stayed or quashed - motion dismissed - application for leave to appeal, Criminal Appeal Act 1912 (NSW), s 5F(3)(a) - dealing with money or other property reasonably suspected to be proceeds of crime - whether indictment defective without identification of class of indictable offences from which money is reasonably suspected of being proceeds - purpose of sub-s (2) - specifies various kinds of conduct proof of which is sufficient to satisfy s 400.9(1), Criminal Code (Cth) - expands operation of sub-s (1) - leave granted - appeal dismissed

CRIMINAL LAW – appeal – conviction – evidence – whether verdict unreasonable or unsupported by evidence – whether trial judge erred in directions to jury – whether trial miscarried where Crown addressed jury in closing on a point not put to the applicant in cross-examination – whether evidence should have been excluded under s 90 of the Evidence Act – whether trial judge erred in admission of evidence from police expert on illicit drug trade – whether trial judge erred in failing to give a warning as to the potential unreliability of police expert’s evidence under s 165 of the Evidence Act

CRIMINAL LAW – Court of Criminal Appeal – jurisdiction – criminal justice stay warrant – offender unlawful non-citizen - offender convicted of soliciting to murder – offender imprisoned – appeal against conviction - offender requests court to issue warrant to prevent his deportation – unsuccessful application to single judge – no power in single judge sitting as Court of Criminal Appeal to issue warrant – whether appeal available to full bench of Court of Criminal Appeal - offender’s appeal against conviction dismissed – rule 50C application by offender – whether Court of Criminal Appeal has jurisdiction to consider issue of warrant – whether need for offender to remain in Australia

APPEAL – competency – UCPR, r 51.41 – whether summary dismissal of proceedings pursuant to UCPR, r 13.4 constitutes interlocutory judgment – Supreme Court Act 1970 (NSW) s 101(2)(e) – leave to appeal required

COSTS – offer of settlement – whether unreasonable to reject offer

CRIMINAL LAW – evidence – Crown application to cross-examine witness under s 38 of the Evidence Act in re-examination

CORPORATIONS – voluntary administration – creditor’s meetings – application for a further extension of convening period – where order extending convening period already made – where examination summonses issued and listed for later dates – where administrators cannot properly make recommendations to creditors until examinations completed – where no secured creditors – where employees would not be prejudiced by further delay.

PROCEDURE – amendments to statement of claim – motion to disallow amendments to statement of claim – where several amendments already made and struck out – where amendments introduce claims against persons not joined to proceedings – where amendments introduce claims which could not possibly succeed – where impugned pleadings defective and incoherent – held, proceedings against third and fourth defendants dismissed.

REAL PROPERTY – possession of land – application to stay execution of writ for possession – potential eviction of disabled person from publicly provided housing – execution of writ for possession stayed

Gross sum costs – application to set aside – no question of principle.

Application for stay of proceedings – no proceedings on foot in Supreme Court of New South Wales – creditor’s petitions pending – application dismissed

CIVIL PROCEDURE – strike out application – application to file new pleadings – multiple grounds for strike out – intersection of power to strike out and to give leave to file amendments – application of strike out doctrine – whether pleadings adequate LEGAL PROFESSION – professional costs – disclosure in costs agreements EQUITY – restitution – necessary elements for pleading restitution – whether a Legal Profession Regulations, reg 45(1)(d) statutory notice precludes the recipient from claiming to operate under a mistaken belief inconsistent with that notice - where restitution is sought from a solicitor of moneys paid to counsel pursuant to a legal retainer – whether pleading of fiduciary duty claims is adequate CONTRACTS REVIEW ACT – time limitations applicable to deed of agreement.

CRIMINAL LAW – Dicianni – CONVICTION APPEAL – two murder offences – whether verdict unreasonable and could not be supported by evidence – strong Crown circumstantial case – motive – DNA evidence – actions of co-offender as accessory – evidence of flight – whether co-offender drove him from murder scene – appeal dismissed – SENTENCE APPEAL – whether sentences manifestly excessive – appeal dismissed – Pintabona – CONVICTION APPEAL – accessory after the fact to two murders – whether evidence of statements admissible – whether verdict unreasonable and could not be supported by evidence – whether open to jury to be satisfied beyond reasonable doubt that co-offender drove offender from murder scene – strong circumstantial case – DNA evidence – conviction appeal dismissed – SENTENCE APPEAL – whether manifestly excessive – sentence appeal allowed – co-offender resentenced.

CRIMINAL LAW – sentence – Crown appeal – import commercial quantity of methamphetamine (55 kgs) – sentence of 10 years imprisonment with non-parole period of 6 years – whether sentence manifestly inadequate – early plea of guilty – considerable planning – offender occupied important position – offence committed for financial gain – no previous offences by offender – serious offence – need for general deterrence – important to set sentencing standards for an offence of this kind – sentence manifestly inadequate – need to re-sentence.

ADMINISTRATIVE LAW – judicial review – application under s 78 Crimes (Appeal and Review) Act 2001 for an order referring the plaintiff’s sentences for drug supply and related offences to the Court of Criminal Appeal for review – precondition that there be a doubt or question as to the correctness of the sentences – satisfaction of precondition held to turn on decision maker’s state of mind not on objective existence of a relevant doubt or question CRIMINAL LAW – sentencing - application under s 78 Crimes (Appeal and Review) Act 2001 for an order referring the plaintiff’s sentences for drug and related offences to the Court of Criminal Appeal for review – precondition that there be a doubt or question as to the correctness of the sentences – whether doubt or question as to whether plaintiff’s sentences involved Muldrock error – Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and R v Way [2004] NSWCCA 131; 60 NSWLR 168 considered

PRACTICE AND PROCEDURE – civil – representative proceedings – application by group member seeking leave to opt out of the proceedings – where proceedings have provisionally settled with final settlement to occur in some months – whether it would be unfair or prejudicial for the applicant to remain a member of the group

DEFAMATION – procedure – interrogatories – whether necessary – consideration of principle of proportionality

LOCAL COURT APPEAL – Summary judgment – second appeal to Supreme Court – earlier appeal remitted proceedings to Local Court for re-hearing – no appeal from earlier Supreme Court judgment – matter referred by Local Court – unsuccessful party’s summons contended earlier matter wrongly decided – principal of finality – abuse of process – summons struck out in part.

CONTRACT – deeds – application to set aside deed of settlement as void – insufficient evidence to ground avoidance on doctrines of common mistake, mutual mistake or unilateral mistake

CRIMINAL LAW – Costs – Where Subpoena issued to the Australian Crime Commission for production of documents – Where Commission relied upon statutory immunity – Where statutory immunity and relevant authorities were drawn to the attention of the accused’s legal representatives – Where Commission repeatedly foreshadowed the making of an application for costs in the event that it was necessary to move to set the Subpoena aside – Where Commission afforded the accused’s representatives the opportunity to withdraw the Subpoena without seeking costs – Where matter proceeded to hearing and Subpoena was set aside – Whether costs should be awarded in favour of the Commission – Relevance of the right of an accused to a fair trial in determining whether costs should be awarded – Order for costs made in favour of the Commission

PROCEDURE – civil – pleadings – motion to strike out further amended statement of claim – plaintiff self-represented – two previous versions of statement of claim struck out – further amended statement of claim largely identical to previous versions – does not comply with UCPR – further amended statement of claim struck out – PROCEDURE – civil – summary disposal – dismissal – whether failure to prosecute with due dispatch – plaintiff has complied with time limits imposed by the court for filing – proceedings not dismissed

MOTOR ACCIDENT – assessment of damages by claims assessor – past and future economic loss – claimant suffered leg injuries – claimant had pre-existing back injuries – plaintiff ceased work at time of accident – Assessor found claimant likely to have returned for work but for accident – applied cushion for past economic loss and discount for future economic loss to account for likelihood of further time off work due to back injuries JUDICIAL REVIEW – supervisory jurisdiction of the Supreme Court – whether Assessor committed jurisdictional error in proceeding on false assumption that parties had agreed levels of past economic loss – whether Assessor failed to discharge function of assessing damages – whether breach of procedural fairness – Assessor did not depart from agreed position of the parties – ground not established – challenge to finding of fact concerning claimant’s likelihood of returning to work but for the accident – making of finding not breach of procedural fairness – allegation that no evidence to support finding of fact – basis for challenge – whether fact found wholly within jurisdiction can be challenged on no-evidence ground in supervisory jurisdiction of the Supreme Court - jurisdictional limits on Assessor’s functions – scope of reasonableness review – finding of fact capable of being challenged on the basis of no evidence or lack of logical grounds for it being made – complaint of no evidence and lack of logical grounds not made out. HELD – grounds rejected – summons dismissed.

INJUNCTIONS – freezing orders – judgment obtained by plaintiffs – offer by plaintiffs to offset costs order ordered against plaintiffs – whether there is a danger that the judgment will not be satisfied – freezing order sought over proceeds of sale of three properties – misleading information provided to court by defendants regarding status of sale of one property – whether property being sold to avoid freezing order PROCEDURE – notice to produce – failure of notice to comply with r 21.10 UCPR – whether documents sought relevant to fact in issue

ADMINISTRATIVE LAW – judicial review – referral of local councillor under the Council’s Code of Conduct – two sets of complaints - whether general manager had jurisdiction to refer the complaints to a review committee – whether councillor should have been given notice before referral – whether denied procedural fairness – whether committee’s findings demonstrated breach of Code – decision of acting general manager to resolve complaints other than by referral – complaints subsequently referred to sole reviewer by new general manager – whether general manager functus officio – draft report provided to councillor – subsequent enquiries and information obtained by reviewer – no further contact with councillor before final report issued – whether procedural fairness denied – whether errors of law through failure of reviewer to make express reference to matter in the Code

PRACTICE AND PROCEDURE – civil – pleadings – defendant seeks leave to amend defence – leave opposed in part by plaintiff – substantial delay in seeking amendments – whether open to defendant to have made amendments earlier – no adequate explanation for delay in seeking amendments – prejudice to plaintiff if amendments allowed – leave granted to amend defence but only for amendments not opposed by plaintiff

ADMINISTRATIVE LAW – supervisory jurisdiction – judicial review of District Court – appeal to District Court from Local Court – whether District Court judge misapprehended the extent of appellate jurisdiction – whether constructive failure to exercise jurisdiction – Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20 – Supreme Court Act 1970 (NSW), s 69 APPEAL – criminal – appeal by way of rehearing – appeal from criminal conviction by Local Court – finding of guilt based on accepting evidence of victims of sexual offences – no fresh evidence tendered on appeal – availability of review of magistrate’s credibility findings – “natural limitations” of proceedings wholly or substantially on the record APPEAL – conviction appeal from Local Court to District Court – powers of District Court under Crimes (Appeal and Review) Act 2001 (NSW), s 20 – whether finding of error by the magistrate necessary – whether District Court may remit to Local Court – Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 discussed WORDS AND PHRASES – “appeal by way of rehearing” – Crimes (Appeal and Review) Act 2001 (NSW), s 18

CONTRACT – guarantee and indemnity – where guarantee provided that it could be extended to cover “new loan contract” – interpretation – deed of variation to extend guarantee presented to guarantors for agreement – terms of new loan contract capping liability of co-guarantor not disclosed in deed or otherwise – whether deed of variation effective to extend guarantee to cover the liability of the borrower under the new loan contract, including capping arrangement AUSTRALIAN CONSUMER LAW – order under s 87 of the Trade Practices Act 1974 (Cth) – misleading or deceptive conduct including omission to disclose information – whether presentation of deed of variation without disclosure of agreement to cap co-guarantor’s liability misleading or deceptive – whether guarantor suffered or likely to suffer loss or damage by the misleading conduct

BAIL – release application – show cause requirement – residential rehabilitation as relevant to show cause requirement

CRIMINAL LAW – offences against the person – murder – trial by judge alone – defence of mental illness – accused suffering from severe case of paranoid schizophrenia – accused did not understand wrongfulness of his act – finding of not guilty by reason of mental illness

DECLARATORY RELIEF – discretionary refusal to consider making of declaration – substantive proceedings settled at mediation – heads of agreement involving payment by non-party employee to plaintiff – dispute about whether tax could be withheld from payment – plaintiff seeks declaration that no amount could be withheld from payment for tax – Commissioner of Taxation not a party and not amenable to declarations – found that bona fide dispute as to whether payment was an employment termination payment – refusal to entertain declaratory relief.

SUCCESSION – family provision – claims by adult children of or approaching retirement age – large estate – whether provision made by will not adequate for proper maintenance, education or advancement in life – Succession Act 2006 (NSW) s 59(1) SUCCESSION – family provision – claim made outside stipulated twelve month period – whether sufficient cause shown to warrant extension of time – Succession Act 2006 (NSW) s 58(2) EQUITY – trusts and trustees – powers – special power of appointment in relation to capital – whether power exercised by trustee in relation to certain real property – evidence included statements made by individual in a position to exercise control over trustee – whether a defective attempt to exercise the power of appointment

CRIMINAL LAW – sentence – murder – plea of guilty – murder of de facto partner – gravity of offence – aggravating factors – conditional liberty – offender’s record – place of offending – mitigating factors – hardship of custody – no remorse – general and specific deterrence – moral culpability – discount for guilty plea – no special circumstances – victim impact statements – sentence imposed

SUCCESSION – PRACTICE & PROCEDURE – Duly executed Will made in 2007 – Original Will lost post death – Nature of order that may be made in respect of copy Will in event that it is found to be a true copy of a valid Will SUCCESSION – Validity of duly executed Will – Elderly testator with some cognitive impairment – Medical and non-medical evidence – Duly executed Will changed long held testamentary intention of deceased to benefit all of his children – Change to benefit one child and that child’s son –Circumstances surrounding the giving of instructions and execution of 2007 Will some five months later – Whether deceased had testamentary capacity and knew and approved contents of 2007 Will SUCCESSION – Informal testamentary document made in 1994 – No dispute that it was not executed in accordance with s 6 Succession Act 2006 – No dispute that the document purports to state the testamentary intentions of the deceased and that the deceased intended the document to form a Will – No dispute that if Court not satisfied of validity of 2007 Will that there should be grant of Probate to Cross-Claimant of the 1994 informal testamentary document

TORTS – negligence – duty of care – operators of recreational facility – breach of duty – quad bike riding – whether obvious risk – whether dangerous recreational activity – s 5L Civil Liability Act 2002 – s 5M Civil Liability Act – whether the respondents gave a relevant risk warning regarding the recreational activity CONTRACT – whether the terms of the contract for the provision of the recreational services excluded the respondents’ liability – when the contract was made – whether efficacy of purported exclusion clause preserved by s 5N Civil Liability Act AUSTRALIAN CONSUMER LAW – breach of s 60 Australian Consumer Law consumer guarantee – whether appellant a “consumer” – operation of ss 60 and 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act DAMAGES – negligence – whether entitlement to an award of compensation under the Competition and Consumer Act precludes an award of damages for non-economic loss calculated in accordance with s 16 of the Civil Liability Act

CORPORATIONS – examinations relating to insolvency – matters for inquiry – application to limit inquiry to matters not subject of court proceedings – oppression or abuse of process – where examination legitimately gives liquidator ‘forensic advantage’ in proceedings – whether improper purpose. CORPORATIONS – examinations relating to insolvency – application for leave to be present at examinations and to take objections to questions amounting to abuse of process – scope of (CTH) Corporations Act 2001, s 596F, to direct that interested person be represented at examination – where potential for examination to impact on person’s rights. CORPORATIONS – examinations relating to insolvency – application to set aside examination summons – where issued under Corporations Act, s 596A, in relation to person not subject to mandatory examination – failure to exercise discretion.

CIVIL – Mental Health Forensic Provisions Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire – interim extension order granted

COSTS - compromise reached - no order as to costs - each party to bear their own costs

WILLS, PROBATE AND ADMINISTRATION – family provision – de facto relationships – application for summary dismissal – whether the plaintiff and the deceased had been in a relationship “as a couple living together” – where plaintiff deposes that the deceased treated his business as his home, and that the plaintiff had a relationship with the deceased and spent time with the deceased at that business over many years for limited periods – held, dismissing the application with costs, that it is arguable that persons may have a relationship “as a couple living together” even though they do not share a “common residence” PRACTICE AND PROCEDURE – security for costs – inherent jurisdiction – application for security for costs against natural person – application based on a failure to comply with the Court’s directions – no evidence of impecuniosity or other relevant factors – application dismissed with costs

APPEAL – appeal from Local Court to Supreme Court – motor vehicle accident – leave to appeal from Local Court - res judicata – subrogated rights of insurer – s24 Civil Procedure Act

CORPORATIONS – directors’ duties – claim by liquidator of a company that one of its directors breached their duty to act in good faith not for an improper purpose – company transferred shares and securities and provided loans to companies controlled by the director – another director and major shareholder was not consulted in relation to the transfers – transfers were purportedly part of a family “succession plan” designed to minimise tax liability – held that the transactions were not in the interests of the company as a whole or of its shareholders and were entered in breach of directors’ duties EQUITABLE REMEDIES – constructive trusts – rescission – company entered share sale agreements and loans in breach of directors’ duties – consideration of requirement that contracts entered in breach of directors’ duties must be rescinded before a constructive trust may be imposed over the subject matter of the contracts – consideration of whether rescission in equity operates as an act of the parties or as an order of the Court – held, ordering that the contracts be rescinded, that the property transferred and the fruits of that property are held on constructive trust EQUITABLE REMEDIES – accessorial liability – honest participation in breach of directors’ duties – Barnes v Addy knowing receipt – director of company procured transfers of the company’s property in breach of directors’ duties – director did not act dishonestly – the director’s son, who procured her breaches of directors’ duties, also did not act dishonestly – companies controlled by the director received the property with full knowledge of the breaches – held that the director and her son are personally liable to compensate the company and the corporate accessories are liable as constructive trustees to re-transfer the property and account for any profit – issues of equitable compensation reserved for further consideration

PRACTICE AND PROCEDURE – application to stay writ of possession – application to set aside default judgment – no arguable defence on the merits – application dismissed

PLEADINGS – amendment to pleadings – late application to amend – no procedural or forensic disadvantage to the second defendant

FAMILY LAW AND CHILD WELFARE – adoption – requirement of parental consent – father gives consent but not in accordance with requirements of Adoption Act – whether requirement for consent should be dispensed with – whether serious cause for concern for welfare of child – whether in best interests of child to override the wishes of the parent – meaning of “override the wishes” – Adoption Act 2000 (NSW) s 67(1)(c)

PRACTICE AND PROCEDURE – preliminary discovery – where seeking to identify potential defendant in proposed defamation claim - whether reasonable inquires made prior to seeking discovery orders – no inquiry made of any of three persons suspected – UCPR 5.2(1)(a) not satisfied – summons dismissed