Cases and authorities

CRIMINAL LAW – appeal against aggregate sentence – utilitarian discount for pleas of guilty – whether applied to indicative sentences – whether aggregate sentence manifestly excessive

JUDGMENTS AND ORDERS – judgment entered for a particular sum, on a particular cause of action – judgment cannot later be entered for a larger sum on the same cause of action - JUDGMENTS AND ORDERS – effect of reservation of liberty to apply JUDICIAL REVIEW – review by Court of Appeal of decision of the District Court – time limit for bringing proceedings – construction of UCPR 59.10(5) – whether the words “proceedings in which the setting aside of a decision is not required” in UCPR 59.10(5) mean that the orders sought in the judicial review proceedings include an order setting aside the decision PROCEDURE – enforcing agreement to settle legal proceedings – whether action seeking enforcement can be brought by notice of motion in the proceedings that have been settled - JUDICIAL REVIEW – failure of a court to accord natural justice as a jurisdictional error – whether failure to accord natural justice capable of being cured by subsequent proceedings COURTS AND TRIBUNALS – jurisdictional limit of District Court in “actions” of $750,000 – circumstances in which District Court has jurisdiction to enter judgment for more than $750,000 – whether jurisdiction to award more than $750,000 can be conferred by waiver or estoppel - COURTS AND TRIBUNALS – jurisdictional limit of District court in “actions” – when interest is included in the amount that makes up the $750,000 jurisdictional limit - COURTS AND TRIBUNALS – whether court commits error of law in entering judgment to give effect to a contractual provision that is a penalty, when no claim has been made that the provision is a penalty - COURTS AND TRIBUNALS – District Court – whether equitable jurisdiction of District Court to grant specific performance is invoked when court enters judgment in accordance with terms of settlement agreed by parties - EQUITABLE REMEDIES – specific performance – whether involved in court entering judgment in accordance with terms of settlement agreed by parties - JUDICIAL REVIEW – review by Court of Appeal of decision of District Court – extension of time limit for bringing proceedings – relevant factors – significance of application for extension of time being heard at same time as the substantive application for judicial review - JUDICIAL REVIEW – orders under s 69 Supreme Court Act 1970 in the nature of prohibition – whether discretionary - JUDGMENTS AND ORDERS – declarations – when appropriate to make - APPEAL – contention that court of limited jurisdiction has exceeded its jurisdiction – whether properly raised by appeal rather than by application for declaration or relief under s 69 Supreme Court Act 1970

CRIMINAL LAW – admissibility – DNA evidence – whether evidence of similarity in allele numbers in mixed contributor DNA profiles is admissible as expert opinion evidence – whether probative value outweighed by danger of unfair prejudice – whether the jury invited to engage in coincidence reasoning

CIVIL LAW – application for referral to pro bono panel

COSTS – successful application for judicial review of determination of CTTT – defendants ordered to pay plaintiff’s costs – availability of indemnity certificate under Suitors’ Fund Act

CRIMINAL LAW – murder - causing grievous bodily harm with intent - application for a separate trial by one of three accused – joint criminal enterprise – co-accused kills and injures with pistol secreted in clothing – whether Crown can prove requisite knowledge of applicant - whether prejudicial evidence to be led against applicant – whether evidence inadmissible against applicant – no inadmissible evidence identified in Crown brief – speculation that co-accused will give evidence implicating applicant – whether such evidence inadmissible – application refused

CIVIL LAW – stay of writ of possession – short term loan – misspelling of name of registered proprietor – generous interest rates

CRIMINAL LAW – Practice and procedure – Opening address to jury by counsel for accused following the opening address of the Crown – Where counsel commented upon suggested submissions which might be made by counsel for co-accused – Where counsel made reference to material which was prejudicial to the co-accused – Discussion of limitations placed upon an opening address by counsel for an accused - Where counsel’s address exceeded those limitations in a way which was prejudicial to the co-accused – Where application made by co-accused that the jury be discharged - Application granted – Jury discharged

COSTS – general rule that costs follow the event – after commencement of proceedings defendant makes concessions so that some issues fall away – defendant successful on remaining issues – both parties achieve a roughly equivalent degree of success – order that each party bear own costs

Murder, judge alone trial, defence of mental illness, special verdict – not guilty on the ground of mental illness

COSTS – where applicant only successful after amending relief sought and adducing further evidence – where respondent ceased to oppose the amended relief sought – respondent justified in opposing earlier relief sought – whether indemnity costs should be payable by respondent – whether gross sum costs order should be made

CONTRACT – sale of assets of two businesses – whether completion date extended – whether conditions precedent to completion satisfied or waived by completion date – whether purchaser entitled to terminate – whether purchaser entitled to return of deposit

TORT – negligence – plaintiff injured when slipped on step – defendant aware that step was slippery – whether defendant reacted adequately to known risk – carpet squares placed on steps not an adequate response – liability established – CONTRIBUTORY NEGLIGENCE – whether plaintiff keeping a proper lookout – application of s 5R Civil Liability Act 2002 – contributory negligence established – DAMAGES – whether damages awarded for future assistance excessive – need to re-assess damages for future assistance – damages reduced.

EQUITY – equitable remedies – interim injunction to prevent sale of company’s property as part of liquidation – where alleged that company agreed to sell property to party – where alleged agreement derived from resolution of shareholders – whether resolution required 75% majority – construction of Articles of Association; EQUITY – relief against forfeiture – whether relief against forfeiture available in respect of option granted by shareholders’ resolution –– whether agreement to sell property reached – uncertainty – where option never exercised so as to give rise to contractual rights capable of being subject of relief; EQUITY – equitable remedies – interim injunctions – variation – whether undertaking given not to sell property should be released – whether relevant change of circumstances – where no seriously arguable case for relief.

EVIDENCE – Observations by witness as to demeanour of accused – Whether evidence of observations was evidence of opinion – Whether evidence relevant EVIDENCE - Observations by witness of a “lump” in accused’s pocket - Where Crown sought to infer that the lump was a gun - Where deceased killed by a the hand gun - Where hand gun not recovered - Where observation of the lump was made several hours following the death of the deceased - Where co-accused asserting duress constituted by threats with firearm - Whether evidence relevant EVIDENCE - Evidence threatening of statements made by the accused regarding the daughters of the co-accused - Where co-accused asserting duress constituted by threats with firearm - Whether evidence of statements relevant

EVIDENCE – Tendency Evidence relied upon by the Crown – Whether evidence met the test of significant probative value

PROCEDURE – subpoenas – where material to be obtained under subpoena related to a cause of action not pleaded in the defendant’s Technology and Construction List Response – consequence that those documents would not be relevant to questions in the proceedings – where subpoenas in any case defective because drafted ambiguously and with excessive width LEGAL PRACTITIONERS – communications with the Court – where a solicitor sent an email to judicial chambers without prior consent of other parties – where the communication related to contentious matters – failure to adhere to Solicitors’ Rules – usual consequence of referral to Office of the Legal Services Commissioner – whether appropriate in present case

CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – fitness hearing – notice of motion dated October 2014 – application for motion to be listed for hearing – refused

CRIMINAL LAW – evidence – voir dire – probative value - brain lesions

CORPORATIONS – voluntary administration – deed of company arrangement (DOCA) – application to terminate DOCA – whether material omissions from or misstatement in information provided to creditors – objective materiality of information – omission of information regarding company’s litigation – where litigation to be pursued if creditors vote in favour of DOCA – held, no material omission in relation to nature, prospects and status of litigation – where potential conflict between director’s interest in pursuit of litigation on behalf of company and his personal exposure as a cross-defendant – held, material omission – omission of information regarding potential liquidator’s claim to recover voidable transaction – held, material omission – whether court’s discretion should be exercised to terminate DOCA – where director despite potential conflict has demonstrated commitment to prosecution of company’s litigation – where possible claims to recover voidable transactions preserved if litigation fails to generate dividend of 100c – where no other creditor supports relief sought by plaintiffs in termination application – where plaintiff is defendant in company’s litigation – where majority of creditors are related creditors but have real interest in success of DOCA – where disclosure of omitted matters unlikely to affect votes of majority - whether public interest in full and accurate disclosure to creditors compromised by refusal to terminate DOCA – held, DOCA not to be terminated. CORPORATIONS – voluntary administration – deed of company arrangement (DOCA) – application to terminate DOCA – whether DOCA unfairly prejudicial to creditors or contrary to interests of creditors as a whole – where DOCA allows for prosecution of litigation with prospect of generating 100c dividend for all creditors – where rights of creditors upon liquidation preserved if litigation does not generate 100c dividend – held, not unfairly prejudicial or contrary to creditors’ interests. CORPORATIONS – voluntary administration – deed of company arrangement (DOCA) – whether DOCA void – whether omissions in information given to creditors invalidate DOCA – where basic requirements of Pt 5.3A satisfied – where clause in DOCA fails properly to reflect resolution of creditors’ meeting – held, clause of DOCA not in accordance with Part 5.3A and declared void – DOCA to be varied to reflect resolution. CORPORATIONS – voluntary administration – administrators – removal of administrators – impartiality – whether bias to be apprehended from alignment of administrators with director in pursuing appointment with a view to DOCA – where pre-appointment process went beyond explanation of administration process – pre-disposition of administrators towards DOCA over liquidation – where creditors vote for DOCA and remaining functions of administrators are the administration of the DOCA – where applicant for removal is defendant in proceedings the prosecution of which is main purpose of DOCA – no reasonable apprehension of relevant bias. CORPORATIONS – winding up – winding up in insolvency – application to terminate winding up – where company under DOCA – where termination of winding up not necessary for implementation of DOCA – where unknown whether company will return to solvency under DOCA – importance of protecting creditors’ interests – where no disadvantage in refusing termination of liquidation – held, stay of winding up pending implementation of DOCA preferable.

PROCEDURE – notice of motion – discovery of documents – documents sought not oppressive – order sought granted – costs

DEFAMATION – procedure – mode of trial – where defendants omitted to file notice of election for a jury trial within the time allowed under the rules – whether Court has power to allow notice to be filed after that time – whether power should be exercised – where omission due to inadvertence in the context of a practice of not incurring fees until necessary DEFAMATION – defences – defence of statutory qualified privilege – where information relied upon in publishing the matters complained of included sources to whom promises of confidentiality were made by journalists – whether appropriate to make order directing defendants to confirm reliance upon defence in advance of trial

CONTRACTS – setting aside share sale agreements – where agreements allegedly vitiated by misleading and deceptive conduct – whether representations made as to GST liability of company – where representation reliant upon warranties in agreement – where warranties uncertain and severable – held, no such representations made – whether representations, if made, were false – effect of (CTH) A New Tax System (Goods and Services Tax) Act 1999, s 38-10(5) – held, company not liable for GST – whether representations made as to liability of company to pay employee and redundancy entitlements – held, no representation made. PERSONAL PROPERTY – alienation of personal property – assignment of choses in action – where choses in action derive from (CTH) Competition and Consumer Act 2010 and (CTH) Australian Securities and Investments Commission Act 2001 – where statutory choses in action do not contemplate award of damages for loss not suffered by party to proceeding – held, choses in action not assignable – whether, if right to rescind were available, plaintiff affirmed or rescinded contract – where plaintiff’s conduct inconsistent with rescission – where restitution not possible – held, no entitlement to rescission. CONTRACTS – setting aside security agreement – where allegedly vitiated by misleading and deceptive conduct – whether defendant misrepresented amounts drawn from bank account – whether representations made by defendant – held, representations not made – whether plaintiff had knowledge of withdrawals – whether plaintiff would not have entered into agreement had misrepresentation not been made – held, no reliance on misrepresentation – whether, if misrepresentation had been made, agreement was rescinded or affirmed by plaintiff’s conduct – held, rescission not available – damages – held, no damage incurred. CONTRACTS – general contractual principles – breach – failure to pay outgoings and mortgage instalments under security agreement – where failure admitted – where rights to payment preserved by undertakings given by defendants to court – whether plaintiff’s breaches justify defendants’ refusal to comply with contractual obligations – where defendants did not terminate for plaintiff’s breach – where plaintiff’s performance of obligations not a condition precedent to defendants’ performance – held, defendants liable for breach of payment obligations. CONTRACTS – whether defendants exercised call option – whether notice conformed to requirements for valid exercise of option – requirement of strict compliance – held, call option not validly exercised.

APPEAL - sentencing - fourteen counts of fraud as a company director, Crimes Act 1900 (NSW) s 176A - two counts of obtaining money by deception, Crimes Act 1900 (NSW) s 176BA - whether sufficient consideration of utilitarian value of guilty plea - where plea was made following a fitness for trial determination - at no point was applicant unfit to be tried or significantly impaired in his capacity to plead - plea not made at earliest opportunity APPEAL - sentencing - manifest excess - whether applicant suffered from mental condition which warranted imposition of a lesser sentence - no evidence of a condition of sufficient severity - no causal connection between condition and offending - offending was of a deliberate and continuing nature - sentence not manifestly excessive - leave to appeal granted - appeal dismissed

APPEAL - sentencing - two counts of murder - two applicants sentenced to imprisonment for life, Crimes Act 1900 (NSW), s 19A; Crimes (Sentencing and Procedure) Act 1999 (NSW), s 61 APPEAL - applications for leave to appeal against severity of sentence - whether error in assessment of objective seriousness of the murders - whether sentencing judge erroneously considered an additional, subsequently abandoned, charge of murder - seriousness of each individual murder separately evaluated - no error demonstrated APPEAL - sentencing - whether error in sentencing of “youthful offenders” - express recognition of applicant’s immaturity - weight to be accorded a matter for sentencing judge, Bugmy v The Queen [2013] HCA 37 APPEAL - sentencing - parity, whether legitimate sense of grievance when sentence considered in relation to co-offender’s sentence - principles of parity have no application when culpability calls for life imprisonment - appeal dismissed APPEAL - “Muldrock error” - standard non-parole period - appeal upheld - applicant remitted for sentencing to a single judge of the Supreme Court of NSW APPEAL - extension of time within which to appeal - Criminal Appeal Rules, r 3B - consideration of the interests of justice, Kentwell v The Queen [2014] HCA 37 - leave to appeal granted

COURTS – Judges – bias – whether reasonable apprehension of bias or prejudgment – where judge made findings on relevant matters in previous proceedings involving one party – whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of the question judge s required to decide COURTS – Judges – where litigant aware of ground for objection on basis of reasonable apprehension of bias or prejudgment during trial but did not object – whether failure to object constitutes waiver PROCEDURAL FAIRNESS – contempt of court – application to withdraw guilty plea – where basis of application contention that guilty plea based on incorrect legal advice concerning proper construction of consent orders – where applicants contended it was arguable on proper construction of consent orders they were permitted to engage in conduct on which contempt charges based – whether primary judge denied appellants procedural fairness in finally determining construction of consent orders rather than determining whether case advanced as defence was arguable CONTEMPT – disobedience of court orders – construction of – whether order ambiguous – whether surrounding circumstances to be taken into account PROCEDURE – contempt of court – guilty plea – whether withdrawal of guilty pleas should be permitted – reliance on alleged incorrect legal advice – whether guilty pleas made with genuine consciousness of guilt PROCEDURE – contempt of court – guilty plea – whether withdrawal of guilty pleas should be permitted – whether principles of finality of litigation or avoidance of conflicting decisions should be invoked where their application would have the effect of perpetuating a miscarriage of justice

ADMINISTRATIVE LAW – Medical reassessment under Motor Accidents Compensation Act 1999 – Review panel decision on causation of plaintiff’s shoulder injury – whether review panel applied wrong test of causation – whether review panel failed to consider relevant material – whether review panel denied plaintiff procedural fairness

EVIDENCE – admissibility – expert opinion – whether opinion shown to be based on expert’s specialised knowledge – whether expert’s process of reasoning revealed – whether mere ipse dixit – whether report unfairly prejudicial to the plaintiffs

PROCEDURE – civil – pleadings – cross claim – leave to file late – whether prejudice occasioned to cross-defendant – whether grant of leave would be in accordance with dictates of justice

PROCEDURE - pleadings – proceedings commenced in 2012- plaintiff self-represented - two versions of Statement of Claim struck out in 2012 – plaintiff applies in 2015 to add defendant and file further Statement of Claim - adequate but scarcely satisfactory explanation for delay – proposed pleading adequately pleaded - leave to add defendant and to file further version of Statement of Claim

REAL PROPERTY – possession of land – claim for possession – failure of defence to comply with rules for pleading – defendants unrepresented – defence struck out with leave to re-plead

PROCEDURE – claim for possession – early judicial directions – directions for production of documents by plaintiff prior to amended defence being filed - error by party in consenting to direction – consent beyond instructions – whether direction should be varied – documents directed to be provided going beyond issues between the parties – direction varied

ARBITRATION – enforcing foreign arbitration awards – where money previously paid into New South Wales Supreme Court as a result of a judgment – whether to enforce foreign award as judgment of the Court under s 8 of the International Arbitration Act 1974 (Cth). ARBITRATION –enforcing foreign arbitration awards – where allegations of bias of arbitral tribunal – whether breach of natural justice for the purposes of s 8(7A)(b) of the International Arbitration Act 1974 (Cth) – whether foreign award should not be enforced for reasons of public policy under s 8(7)(b) of the International Arbitration Act 1974 (Cth). EQUITY – trusts and trustees – trust is not a separate legal entity – where First Defendant was party to impugned contract as trustee of a trust – whether First Defendant properly party to the proceedings.

EQUITY – subrogation – payment of debt by third party at request of the debtor – whether unconscionable of debtor to avoid liability to third party – whether debtor is subrogated to third party

CONTRACTS – employment as managing director – whether failure to disclose element of “wind down” proposal with joint venturer was serious misconduct for the purposes of managing director’s employment contract – whether failure to disclose employment proposal with joint venturer simultaneously with submission of separation proposal to company was serious misconduct; CORPORATIONS – whether any damages to which defendant might be entitled unavailable by reason of s 200B or capped by reason of s 200F(2) of the Corporations Act 2001 (Cth)

PRACTICE AND PROCEDURE – legal professional privilege – waiver – privileged material referred to in affidavit – whether conduct inconsistent with maintenance of privilege – whether material must be read before privilege waived

CLASS ACTION – flood – alleged negligent operation of dams – pleadings – application for leave to file further amended statement of claim – manner of pleading breach – necessary to only plead act or omission – previous direction not to plead deficient thought processes or methodologies – cross references in particulars to experts’ reports – identifying real case to be met – certain alleged breaches said to be of no causative consequence – alleged disparity between definition of class and pleaded cause of action.

CRIMINAL LAW – appeal against sentence – whether sentencing judge failed to take into account early guilty pleas for various counts – whether sentencing judge erred in failing to take into account the applicant voluntarily disclosing the conduct that resulted in two counts – whether sentence is manifestly excessive – leave to appeal against sentence granted – appeal allowed – applicant resentenced

APPEAL – Appeal as of right restricted where amount in issue over $100,000 – Leave to appeal – Where no injustice caused to either party by the refusal of leave - Where amount in issue at time of hearing was $10

ADMINISTRATIVE LAW – judicial review – medical review panel – assessment of degree of permanent impairment under the Motor Accidents Compensation Act 1999 (NSW) – failure to take into account relevant considerations – whether the failure to refer to particular evidence can constitute failure to take into account relevant considerations – failure to accord procedural fairness – whether failure to respond to a substantial argument based on a body of evidence – constructive failure to exercise jurisdiction – whether failure of review panel to apply itself to the real question to be decided – whether review panel misunderstood a significant body of evidence relevant to causation of injury – review panel certificate vitiated by jurisdictional error

CRIMINAL LAW – Crown application for multiple grants of leave under s 38(a), (b) and (c) of the Evidence Act to cross-examine the accused’s wife – consideration of s 192 of the Evidence Act

PROCEDURE – application for stay – where contended that payment in conformity with orders may render fund non-compliant with (CTH) Superannuation Industry (Supervision) Act 1993 – where no basis to relieve defendants of liability to pay – held, more appropriate to require payment of funds into court – where defendants claim they need time to pay – application for time to pay to be made with appropriate evidence

CRIMINAL LAW – BAIL – show cause requirement – weaknesses in prosecution case – length of likely remand – large security available – bail concerns mitigated – no unacceptable risks – conditional bail granted CRIMINAL LAW – BAIL – dispute over whether person an “acceptable person” – factors to be considered

CRIMINAL LAW – procedure – trial before a jury – application for a directed verdict – whether evidence adduced by the Crown capable of supporting a verdict of guilty – inability of evidence to negative issue of self-defence – question of whether Prasad direction should be given in relation to alternative charge of manslaughter

CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – young children with disabilities – lengthy remand period – bail concerns alleviated by onerous bail conditions – unacceptable risk – bail granted

PROCEDURE – civil – application of adjournment – subpoena of lay witness by plaintiff – where case has no prospect of finishing within time estimate COSTS – application for plaintiff to pay costs thrown away by adjournment – costs reserved until further evidence is heard

CRIMINAL LAW –high risk sex offenders – extended supervision order – final hearing – defendant poses unacceptable risk of committing serious sex offence if not kept under supervision – extensive criminal history of offences including serious sex offences and offences of a sexual nature - defendant susceptible to alcohol abuse – inability to comply with restrictions imposed by various orders including previous extended supervision order – extended supervision order of 5 years duration made – condition requiring defendant to accept employment nominated by Departmental Supervising Officer inappropriate having regard to need for certainty where criminal consequences could ensue – inappropriate to confer search and seizure powers on Departmental officers in circumstances where no demonstrated need

APPEAL – appeal against Local Court decision – contracts and agency – rental of telecommunications equipment – recovery of money owed under agreement – doctrine of undisclosed principal – appeal allowed – judgment and orders set aside

CRIMINAL LAW – sentencing – aggregate sentence – necessary to record indicative sentences for individual offences taking into account reduction for plea of guilty – error disclosed – applicant re-sentenced

CRIMINAL LAW - drug offences – attempt to possess substance reasonably suspected of being unlawfully imported – circumstantial case – appeal against conviction – whether jury verdict unreasonable or cannot be supported having regard to the evidence – s 6 Criminal Appeal Act 1912 – appeal dismissed