Cases and authorities

CRIMINAL LAW – appeal against conviction and sentence – credit card fraud – joint criminal enterprise – aggregate sentence.

PROCEDURE – notices to produce – application to set aside – whether notice complies with (NSW) Uniform Civil Procedure Rules 2005, r 34.1 – whether notice is impermissibly in nature of discovery – whether notice issued for legitimate forensic purpose – not limited to necessity of documents sought – oppression – whether notices cast undue burden on defendant in identifying documents.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where child settled in placement with proposed adoptive parents and has developed familial and psychological ties with adoptive parents and siblings – whether adoptive mother’s depressive illness undermines her parenting capacity – where adoptive parents have experienced difficulty in supporting contact with birth parents – where adoptive parents committed to supporting birth parent contact – where adoptive parents not ideally placed to meet child’s cultural needs – where adoptive mother’s cultural heritage sufficiently similar to child’s to mitigate deficit in child’s cultural and identity needs – parenting capacity of birth parents – where realistic prospect of restoration of child to care of birth parents remote – where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – held, that the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child.

CRIMINAL LAW – procedure – Criminal Assets Recovery Act 1990

CRIMINAL LAW – procedure – Criminal Assets Recovery Act 1990

WILLS, PROBATE AND ADMINISTRATION – family provision – claim for greater provision out of the deceased’s estate by her adult foster child – executors agreed that the plaintiff is an eligible person, that there were factors warranting her application and that inadequate provision was made for her – whether plaintiff should be entitled to the whole of the small estate – consideration of factors relevant to increased provision – held that increased provision should be made, but not the whole or most of the estate

PRACTICE AND PROCEDURE – costs – partial success by plaintiff – plaintiff succeeded on one of its two claims which comprised approximately one third of the value of the total claim – plaintiff’s partial success gave it a prima facie entitlement to its costs – whether there were distinct or separable issues – held that the unsuccessful claim was a separable issue and the plaintiff is entitled to two-thirds of its costs

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

DEFAMATION – pleadings – reliance on republication going to damages – whether fact of republication available as a matter of inference DEFAMATION – pleadings – imputations – capacity – requirement of precision in pleading – requirement of imputations to differ in substance

BAIL – charge of murder – show cause requirement – assessment of strength of Crown case – self-defence raised by evidence in Crown case – where applicant young – where applicant never previously in custody – where applicant has history of breaching bail – whether undesirable length in custody awaiting trial – applicant has shown cause as to why detention unjustified – whether unacceptable risk if bail granted – assessment of bail concerns – any concern mitigated by bail conditions – conditional bail granted

COSTS – varied success – where one plaintiff succeeded and one failed against a common defendant – consequence that defendant was successful in one action and unsuccessful in the other – whether common costs of plaintiffs recoverable in full by successful plaintiff, or only a proportion – whether common costs of defendants payable in full by unsuccessful plaintiff, or only a proportion – application of the ‘rule of thumb’ – successful plaintiff’s other, unsuccessful, claim – notice to admit – costs consequences of failing to admit facts later proved – assessment of costs – ‘broad-brush justice’ – whether appropriate to award an overall percentage of costs to plaintiff in order to minimise scope for further dispute COSTS – unsuccessful plaintiff’s abandonment of one claim – where failure of that claim was inevitable – remaining claim – where offer of compromise not accepted – assessment of both claims on the indemnity basis – carve-out for costs that would have been incurred regardless in defending successful plaintiff’s claim

COSTS – where defendants (and cross-claimant) wholly unsuccessful – delinquency – where one cause of action time-barred – where another dropped in substance at the hearing – where defence evidence voluminous and largely irrelevant – usual result of assessment on the indemnity basis – whether ‘probate exception’ applies – where non-adversarial approach was available to trustees but not utilised – consequence that proceedings were needlessly adversarial COSTS – submitting appearances – where defendant filed a submitting appearance less than a fortnight before the hearing – where defendant highly active in preparation for, and support during, litigation – consequence that submitting defendant to be treated as an active defendant for costs purposes

LEAVE TO APPEAL – application to set aside statutory demand – Corporations Act 2001 (Cth) s 459G – whether genuine dispute about existence of debt – whether “some other reason why demand should be set aside” – no issue of principle, question of general public importance or injustice beyond arguable error – application dismissed

COSTS – application for order against legal practitioner – supervisory jurisdiction of Supreme Court over legal practitioners – whether costs incurred by the misconduct of applicant’s solicitor – Civil Procedure Act 2005 (NSW), ss 56 and 99

COSTS - offer of compromise - whether offer to consent to declaratory relief with each party paying its own costs compliant with rules - offer compliant - discretion to order otherwise even where orders ultimately made were no less favourable than the offer - applicant sought declaratory relief, in an area of public law, where Council was only appropriate contradictor - Calderbank offer - not unreasonable for respondent to refuse - application for special costs orders refused

CORPORATIONS – receivers, controllers and managers – application by receivers under s 424 of the Corporations Act 2001 (Cth) for approval in relation to sale of assets.

PROCEDURE – whether there should be a separate determination as to whether the fifth defendant owed the plaintiff a duty of care – whether plaintiff’s claim as to fifth defendant’s breach of covenant of quiet enjoyment should be struck out or separately determined – whether plaintiff should be given leave to amend pleadings to meet strike out application

INJUNCTIONS – application to restrain parties from disposing of trust assets or purporting to appoint replacement trustee – where evidence establishes reasonable basis for apprehending purported appointment without power such as to place trust assets at risk

DEFAMATION – pleadings – imputations – objection that imputations do not differ in substance

POSSESSION – notice to occupier – requirement for notice to occupier to be served prior to entry of default judgment – dictates of justice – application to stay execution of writ of possession

PRACTICE AND PROCEDURE – Juries – Where revised estimate of trial increased its likely length from 8 weeks to in excess of 12 weeks – Three additional jurors to be selected – No point of principle

CRIMINAL LAW – BAIL

CORPORATIONS – voluntary administration – where deed of company arrangement did not prevent secured creditor from dealing with secured property unless it voted in favour of the deed – where secured creditor abstained from voting – where deed extinguished claims of creditors in terms similar to s 444D(1) of the Corporations Act 2001 (Cth) – where deed preserved security interests in terms similar to s 444D(2) of the Corporations Act 2001 (Cth) – whether secured creditor entitled to enforce security – application of ss 444D(1) and 444D(2) of the Corporations Act 2001 (Cth) to present and after-acquired property. CORPORATIONS – voluntary administration – appointment of administrator under s 436C of the Corporations Act 2001 (Cth) – where person entitled to appoint administrator not a creditor of the company but entitled to ‘realise’ or ‘deal with’ security under s 444D(2) of the Corporations Act 2001 (Cth) – whether appointment of administrator is ‘realising’ or ‘dealing with’ security interest – whether ability to appoint administrator is preserved by s 444D(2) of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – where administrator appointed after execution of deed of company arrangement – where company appointing second administrator held not to be a creditor – where deed administrators the sole creditor of second administration and oppose continuance of administrator’s appointment – whether to terminate second administration under s 447A of the Corporations Act 2001 (Cth).

COSTS – general rule that costs follow the event – offer of compromise made by the defendants and rejected by plaintiff – judgment more favourable than terms of offer – costs on indemnity basis from date of offer of compromise

EVIDENCE – Tendency evidence – Where both accused charged with murder and supplying a prohibited drug – Application by one-accused to rely upon certain evidence as tendency evidence – Whether such evidence relevant to a fact in issue – Whether the evidence went to the credibility of the co-accused – Applicability of Part 3.6 of the Evidence Act NSW 1995 (NSW) – Application refused PRACTICE AND PROCEDURE – Applications by each of two co-accused for separate trials – Where both accused charged with murder and supplying a prohibited drug – Where Crown case in respect of murder count based upon a joint criminal enterprise – Where murder count and supply count linked - Where majority of evidence relied upon by the Crown admissible against both accused in respect of both counts – Where one accused foreshadowed application to cross-examine co-accused about prior criminal convictions – Where that same accused was allegedly threatened by co-accused – General principles applicable to the exercise of the discretion to order separate trials – Both applications for separate trials refused PRACTICE AND PROCEDURE – Application by one accused for an order that the counts of murder and supply prohibited drug be tried separately – Where counts inextricably linked – No justification for separation of counts – Application refused

COSTS – application for costs order against insurer of insolvent defendant – plaintiff sued defendant dentist for grossly excessive dental treatment – insurer conducted defence on behalf of dentist – conceded dental treatment was excessive – plaintiff sued in negligence and assault – plaintiff alleged consent to treatment fraudulently obtained – plaintiff alleged damages not limited by Civil Liability Act because of intentional acts of defendant – defendant admitted negligence but denied assault and fraudulently obtaining consent to treatment – at first instance plaintiff obtained damages for negligence and costs order but balance of claim failed – on appeal plaintiff succeeded in establishing assault and intentional act of defendant – finding that consent procured by fraud also made – plaintiff obtained award of exemplary damages – insurer denied indemnity including for costs at final instance – plaintiff sought costs of proceedings at first instance from insurer – contended that insurer represented that indemnity would not be denied even if fraud or similar conduct established. HELD: insurer did not make representation – application dismissed.

APPLICATION TO SET ASIDE ORDERS – where appeal against application for stay and other orders dismissed – UCPR, r 36.16(3a) – UCPR, r 12.11

APPEAL – civil – registration as a medical practitioner under the Health Practitioner Regulation National Law – application for limited registration in an area of need – meaning of ‘practice’ in approved recency of practice registration standard – whether NCAT erroneously narrowed the ambit of ‘practice’ – no error in finding employment as medical receptionist, pathology collector and undertaking observerships did not satisfy the definition of ‘practice’ – appellant ineligible for limited registration

CORPORATIONS – winding up – application for orders relating to retirement of liquidator and scheme administrator and appointment of a replacement liquidator and scheme administrator – whether the Court has an inherent jurisdiction to replace a scheme administrator.

CRIMINAL LAW – evidence – voir dire – evidence relevant to credibility of the deceased

ADMINISTRATIVE LAW – judicial review – whether decision of Motor Accidents Authority Review Panel on causation infected by legal error – mere question of fact – no error of law – clinical notes of general practitioner treated as part of the evidence, not as “determinative” – whether examination conducted by two of the three assessors who comprised the Review Panel invalid under s 63 of Motor Accidents Compensation Act 1999 (NSW) – no error disclosed – summons dismissed

TORT – trespass to person – multiple sexual assaults between 2001 and 2008 committed by the defendant school teacher against the plaintiff who was a pupil – proceedings resolved against school – defendant teacher did not defend claim at hearing – no award of exemplary damages against defendant as already subject to substantial punishment by imprisonment following pleas of guilty to associated offences

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

APPEAL - sentence - manslaughter by shooting - self-defence, excessive force that inflicts death - Crimes Act 1900 (NSW), s 421 - whether conduct a reasonable response in circumstances as perceived by applicant - whether applicant believed deceased was armed with a gun - whether sentencing judge failed to identify the circumstances as the applicant perceived them - sentencing judge omitted to find the applicant perceived the deceased was armed with a gun and willing to use it against him - omission affected evaluation of unreasonableness of applicant’s response - error established - applicant re-sentenced

BAIL – Detention Application – show cause offence – murder – unexplained and unprovoked stabbing of deceased – identification an issue – reasonably strong Crown case as to identification – failure to show cause why detention is not justified – application granted – bail refused.

CRIMINAL LAW – conviction appeal – aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 – whether verdict unreasonable and cannot be supported having regard to the evidence – whether evidence capable of establishing that sexual intercourse took place – complainant aged 6 – evidence of complainant consistent with sexual intercourse not having taken place – not open to jury to find beyond reasonable doubt that sexual intercourse took place – whether erroneous directions given by trial judge as to the elements of the offence of “sexual intercourse” – necessity to have regard for way in which the trial was run – no error in trial judge’s directions – appeal should be allowed – applicant should be released.

CRIMINAL LAW – appeal – conviction – evidence – admission – ad hoc expert opinion – where expert qualified to identify voice on calls – where evidence sought to be admitted to prove existence of fact that accused was the voice on calls – consideration of Leung and Irani – Leung and Irani distinguished CRIMINAL LAW – appeal – conviction – concession by defence counsel in closing address – where concession not made on instructions – where concession resulted in no warning to jury regarding ad hoc expert voice identification evidence

SENTENCE APPEAL – theft of motor vehicles – break and enter dwelling – drive manner dangerous while police in pursuit – substantial custodial sentence imposed – alleged incompetence of legal representative at sentence hearing – failure to obtain and tender psychiatric report – alleged failure to advise offender about assisting police in locating co-offender – failure to obtain evidence from family member – necessity to demonstrate miscarriage of justice – must show material of real substance not tendered – not shown – leave granted but appeal dismissed.

SUCCESSION – family provision – application by adult children of earlier marriage – deceased left entirety of his estate to his widow – no provision made for his children from first marriage – previously the children forwent part of their grandmother’s estate in favour of deceased – deceased promised to make provision for them – whether court entitled to take into account the children’s expectation resulting from the representation – whether foregoing part of the grandmother’s estate a discharge of moral obligation to deceased and thus a reason not to make – Succession Act 2006 (NSW), s 60(2)(a) and (b) SUCCESSION – family provision – adult children with demonstrated financial needs – widow with competing claims to the estate – whether trial judge properly balanced competing claims – whether judge erred in his discretion finding the widow was financially “relatively secure”

MOTOR ACCIDENTS COMPENSATION – assessment of damages - appellant injured in two separate motor vehicle accidents – appellant developed psychiatric condition - both proceedings were heard together in District Court – primary Judge found appellant required seven hours of domestic assistance - damages apportioned 50:50 between the two respondents – whether primary Judge erred in assessment of non-economic loss and need for domestic assistance – whether threshold requirement for awarding damages for past and future gratuitous care prescribed by s 141B(3) of the Motor Accidents Compensation Act 1999 (NSW) satisfied

DEFAMATION – second listing – no issue of principle

COSTS – Costs thrown away – Hearing vacated on first day on plaintiffs’ application – Defendant discovered two days before hearing that first plaintiff had been bankrupt – First plaintiff had not informed her own legal advisers of her bankruptcy – Bankruptcy had potentially significant effect on first plaintiff’s case

COURTS – transfer between courts – whether proceedings more appropriately dealt with in the Land and Environment Court – ancillary jurisdiction

CRIMINAL LAW – remarks on sentence – offender found guilty of murder by jury – plea of guilty to manslaughter – offender intended to inflict really serious injury to deceased – offender had previous criminal conviction for violence – established problem with prohibited drugs – intoxication – offences dealt with by way of s 166 certificate

APPEAL – appeal from Local Court to Supreme Court – identification of contracting parties – pleadings – procedural fairness – whether identity of contracting parties in evidence – real issues between parties - project management contract - leave to appeal mixed question of law and fact – quantum meruit

SUMMARY JUDGMENT – whether the proceedings or the statement of claim disclose a reasonable cause of action – costs claimed against legal representation under s 348 Legal Profession Act 2004 (NSW) and s 99 Civil Procedure Act 2005 (NSW) - whether statutory claims for costs should be made by way of notice of motion in the original proceedings – whether an action for collateral abuse of process can be brought against a party’s solicitor – subpoena to produce documents from a deregistered company – whether privilege can survive deregistration – whether proceedings should be consolidated

PROCEDURE – civil – possession of security by bank – borrower in Hawaii – interlocutory issues – application to strike out defence by bank – borrower’s application for summary dismissal PROCEDURE – civil – jurisdiction – application to transfer proceedings – lack of federal jurisdiction

CIVIL PROCEDURE – notice to produce – whether documents sought are relevant to security for costs motion and sought for a legitimate forensic purpose - whether documents sought are privileged under s 119 of the Evidence Act 1995 (NSW) – whether documents produced for the dominant purpose of the plaintiff being provided with professional legal services – whether memoranda of fees, bills of costs, solicitors trust account ledgers, costs agreements and retainers attract privilege

APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – assessment by Magistrate of award of abatement of rent – whether Magistrate gave adequate reasons – whether defendant in the Local Court denied procedural fairness – whether Magistrate erred in awarding indemnity costs against defendant in the Local Court – whether Magistrate erroneously took into account non complying offer of compromise and lack of prospects of success when awarding indemnity costs

COSTS – determination of separate question of liability – multiple parties – apportionment of costs amongst defendants