Cases and authorities

CRIMINAL LAW – Crown appeal – sentencing – Respondent pleaded guilty to three counts of using a carriage service to access child pornography (s. 474.19(1)(a)(i) Criminal Code (Cth)) and one count of possessing child abuse material (s.91H(2) Crimes Act 1900 (NSW)) – two further possession offences taken into account on a Form 1 – offending took place over a seven year period – Respondent possessed more than 32,000 items of child abuse material – total effective sentence imposed in District Court of two years imprisonment to be served by way of Intensive Correction Order – failure to have proper regard to the nature and circumstances of the offending – failure to apply relevant principles concerning concurrency, accumulation and totality – failure to give effect to the need for general deterrence and denunciation – undue weight given to Respondent’s subjective circumstances – sentences manifestly inadequate – residual discretion to resentence the Respondent exercised – appeal allowed – Respondent sentenced to terms of fulltime imprisonment – some accumulation appropriate as between sentences imposed for State and Commonwealth offences

CRIMINAL LAW – applicant convicted of murder – miscarriage of justice conceded by Crown – conviction quashed – issues whether verdict of acquittal should be entered or re-trial ordered – Notice to Produce addressed to Commissioner of Police – public interest immunity raised – claim for public interest immunity upheld in part – claim of legal professional privilege by Crown – claim for legal professional privilege not upheld.

PROCEDURE – civil – notice of motion – proceedings on cross-claim to be heard separately from principal proceedings – r 9.8 UCPR – opposed by cross-claimants – commonality of factual issues – risk that facts found differently if heard separately – not in interests of justice to separate proceedings – notice of motion dismissed

CORPORATIONS – winding up – winding up in insolvency – application for leave under s 459S of the Corporations Act – where company seeks to rely on purported assignments of the debt the subject of the demand to the director of the company –whether the issuer of the demand was a creditor as a result of the assignments – whether requirements for leave under s 459S are satisfied. CORPORATIONS – winding up – liquidators – appointment of liquidator – whether proposed liquidator has conflict of interest.

PRACTICE AND PROCEDURE – whether leave granted to reopen Plaintiffs’ case at point of closing submissions – whether leave granted for substantial further affidavits – whether proceedings should be adjourned for lengthy period at point of closing submissions.

DEFAMATION – procedure – summary dismissal – whether matter complained of reasonably capable of defaming the plaintiff

PRACTICE AND PROCEDURE – whether there should be separate determination of whether plaintiff has suffered damage by reason of the matters it alleges in its list statement

CIVIL PROCEDURE – application by plaintiff to transfer Local Court proceedings to Supreme Court – issues raised by cross-claim – whether cross-claim properly pleaded

PROCEDURE – judgments and orders – proposed orders – form of orders to be made to give effect to primary judgment. PROCEDURE – costs – orders made as to costs as between parties to proceedings. PROCEDURE – interest – whether interest to be awarded under s 100 of the Civil Procedure Act 2005 (NSW).

CRIME – sentencing – manslaughter – dangerous and unlawful act – accused lifting and pushing victim resulting in victim falling from balcony – no intention to cause fall

ADMINISTRATIVE LAW – judicial review – decision of the proper officer of the Motor Accidents Authority to dismiss an application for review of a medical assessment pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) – whether reasonable cause to suspect that medical assessment was incorrect in a material respect – whether medical assessor should have undertaken “disentanglement” of causation with regard to psychological injuries – whether proper officer committed an error of law in refusing to order a review of the medical assessment

CRIMINAL LAW – evidence – admissibility of ERISP – whether admissions made influenced by threats – whether extension of detention warrant valid – essential facts to exclude ERISP not proved – ERISP admitted

EVIDENCE – advance ruling as to admissibility pursuant to s 192A of the Evidence Act 1995 (NSW) – plaintiff/applicant seeks advance ruling in respect of affidavit and expert opinion evidence – held Court may decide whether it is appropriate to give the ruling before embarking upon hearing of application to sustain the ruling – test is one of appropriateness, falling within the discretion of the judge in the circumstances of the case – premature for the Court to rule on appropriateness – because first, leave given to second defendant to file further report of expert opinion could remedy shortcomings – second, plaintiff did not precisely and informatively identify the rulings sought

PROCEDURE – motion to transfer proceedings to the Land and Environment Court to be heard concurrently with proceedings first instituted in that Court – whether both proceedings so closely associated as to form part of the same controversy pursuant to s 149B Civil Procedure Act 2005 (NSW) – primary relief sought in Supreme Court proceedings an injunction to restrain the conduct of the Land and Environment Court proceedings – where private rights/obligations arise in circumstances where public interests/obligations under the Environmental Planning and Assessment Act 1979 (NSW) also apply, parties’ rights/obligations may not be determined solely by private law principles – undesirable to grant injunction if it effectively prevents party seeking statutory remedy pursuant to the Environmental Planning and Assessment Act – proceedings in this Court directly impinge upon rights of parties in the other proceedings – proceedings arise as part of the one controversy – parity of standing between both Courts – Land and Environment Court is in a better position to determine issues and can preserve plaintiff’s rights if it chooses to do so – order to transfer proceedings to Land and Environment Court

PROCEDURE – motion for originating process to be set aside pursuant to UCPR rr 11.7 and 12.11 – whether plaintiff established claims fall within one of the heads of extra-territorial jurisdiction in UCPR Schedule 6 – whether requisite degree of satisfaction that proceedings founded on breach of contract in this State or subject-matter of proceedings is a contract in respect of a breach committed in this State – test is whether party has a “good arguable case” – quasi-contractual obligations on basis of money had and received – claims satisfy UCPR Schedule 6 – whether this Court is an inappropriate forum – held no other forum evident as clearly more appropriate – no unfair or significant imposition on defendants – motion dismissed

CRIMINAL LAW – sentencing – murder –serious criminality – aggravating factors – use of a weapon – prior criminal convictions including assault occasioning actual bodily harm – offender on conditional liberty at time of offence – mitigating factors – offence not part of organised criminal activity – lack of remorse – victim impact statement taken into account – CRIMINAL LAW – sentencing – conspiracy to influence a witness – guilty plea – mid range criminality

APPEAL – criminal – application to discharge juror – application refused – whether misconduct of juror – application for leave to appeal convictions JURY – application to discharge – misconduct by juror – bringing newspaper clippings of reports of trial into jury room – reading newspaper reports – whether conduct involved making a prohibited inquiry – whether inference that juror had searched internet – whether juror should have been discharged JURY – questioning foreperson on oath – denial of searching internet – other jurors asked to send note to judge – adequacy of inquiry of jurors

APPEAL – leave to appeal – criminal trial – interlocutory decision – joint trial ordered with respect to separate complainants – Basha inquiry held – complainants cross-examined on contacts with each other – whether counsel prevented from reopening the issue of separate trial – leave required – Criminal Appeal Act 1912 (NSW), s 5(1)(b) APPEAL – conviction – leave to appeal – challenge to jury direction – whether distinction between tendency and coincidence explained – no complaint about directions at trial – leave required – Criminal Appeal Rules (NSW), r 4 CRIMINAL LAW – sentencing – sentencing for historical sexual offences following two separate trials – whether sentence accorded with sentencing principles applied at time of offending – whether leniency should be afforded where accused first convicted of similar offences which post-dated the offences on trial – whether intervening change of maximum penalties for various offences at different trials properly reflected in indicative sentences CRIMINAL LAW – sentencing – aggregate sentence – earlier trial completed before s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) commenced – whether aggregate sentence available in relation to earlier convictions – whether accused convicted prior to commencement of s 53A CRIMINAL LAW – sentencing – aggregate sentence – whether non-parole period for each indicative sentence required – whether indicative sentences manifestly excessive – whether principle of totality applicable to aggregate sentence EVIDENCE – admissibility – tendency – sexual offences – evidence of uncharged acts admitted as tendency evidence – possibility of concoction suggested in general terms during cross-examination on voir dire – whether possibility of concoction affected the probative value of evidence – whether potential prejudicial effect – whether concoction relied on at trial EVIDENCE – relationship evidence – evidence of other incidents involving witness – evidence rejected under tendency rule at pre-trial hearing – evidence admitted as relationship evidence to explain the response of witness WORDS AND PHRASES – “conviction” – “convicted” – Crimes (Sentencing Procedure) Act 1999 (NSW), Sch 2, Pt 21, cl 62 – “probative value” – Evidence Act 1995 (NSW), ss 101, 137

CRIMINAL LAW – appeal – murder – sentence of life imprisonment - appeal against conviction and sentence – whether demonstration video of USMC knife attack method wrongly admitted – whether evidence relevant or invited jury to engage in coincidence reasoning – whether probative value outweighed by danger of unfair prejudice – worst case category of murder – whether sentencing discretion miscarried by imposition of life sentence

DAMAGES – motor vehicle accident - pre-existing psychiatric condition – whether aggravation of pre-existing psychiatric condition ceased before trial – primary Judge finds that any aggravation of the pre-existing condition ceased before the trial – application of Watts v Rake and Purkess v Crittenden – whether the defendant had onus of adducing evidence that the causal relationship between the accident and the continuing disabilities had ceased – whether defendant satisfied that onus

BUILDING AND CONSTRUCTION – whether payment claim is valid – where claimant served two payment claims in relation to the same work, but with different reference dates – whether successive payments claims, claiming the same amount, can be validly served under the Act – application of ss 8(2)(b), 13(4) and 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

[INTEREST] – where plaintiff offered $42,000 plus $5,720 eight months before litigation – where $42,000 offered before and at the trial – where plaintiff pursued higher amount at trial and failed – whether pre-judgment interest should be awarded

PROFESSIONAL NEGLIGENCE – medical negligence – child born with cerebral palsy from which he died in adulthood – survival of action – claim by mother for the provision of gratuitous services in the nature of emotional support, socialisation and companionship and psychological and emotional care – evidence – proposed reliance by plaintiff on psychiatric report – where report contains general expressions concerning the value of maternal care – whether relevant to an issue in the proceedings – whether possibility of double counting of services provided – whether report contains an opinion based upon specialised knowledge

CRIMINAL LAW – Sentencing – Manslaughter

APPEAL – appeal from decision of Local Court Magistrate pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) – unpaid invoices for servicing and repair of car hoists – whether Magistrate committed an error of law in confining the plaintiff to its pleadings with regard to contract and quantum meruit – whether leave should be granted to impugn a costs order

BAIL – detention application – show cause offence – murder – where circumstantial Crown case reasonably strong - where respondent terminally ill – where respondent has poor literacy skills - cause shown why detention is not justified – assessment of bail concerns – risk of respondent committing a further offence – risk of respondent interfering with witnesses – respondent poses unacceptable risk – application granted – bail refused

PRACTICE and PROCEDURE - application for leave to appeal - reopening application - whether order based on misunderstanding - whether order ambiguous - grant of leave under Felons (Civil Proceedings) Act 1981 (NSW)

APPEAL – application for leave to appeal – summary dismissal of proceedings – no prospects of success – leave refused

Variation to costs orders.

PROCEDURE – judgments and orders – stay pending judicial review under Supreme Court Act 1970 (NSW), s 69 – where order cancelling registration of health practitioner under s 149C of the Health Practitioner Regulation National Law (NSW) effective immediately – where proposed grounds of “merits” appeal not specified – where judicial review sought and statutory right of appeal not pursued – stay refused PROCEDURE – extension of time for appeal – where proposed that judicial review proceedings be pursued before statutory right of appeal – where proposed grounds of appeal and explanation for delay not provided – extension of time refused

AUSTRALIAN CONSUMER LAW – insurance contract – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB, 12DA and 12GF – misleading or deceptive conduct by omission of information – renewal of annual home insurance policy – whether insurer’s failure to invite renewal or to indicate that renewal would not be invited was misleading or deceptive conduct in circumstances where the insurer was separately dealing with insured in relation to a claim under an earlier policy – whether conduct gave rise to a reasonable expectation that the policy had been renewed or extended INSURANCE – renewal of home insurance policy – failure of insurer to give notice of expiry of insurance cover under s 58 of the Insurance Contracts Act 1984 (Cth) – nature of statutory policy for insurance arising under s 58

CORPORATIONS – winding up – presumption of insolvency – where company failed to comply with creditor’s statutory demand – whether the company be wound up under s 459P of the Corporations Act 2001 (Cth).

DEFAMATION – pleading – application by individual defendant to have proceedings against him summarily dismissed – where source quoted in a newspaper article sued as a joint publisher of the whole article – where action based on original interview statute-barred – whether reasonably open to argue source liable as a publisher within the principles stated in Webb v Bloch – consideration of Webb v Bloch in accordance with ordinary principles of principal and agent COSTS – exceptions to the general rule that costs follow the event – conduct of parties – where defendants ought to have brought dismissal application forward before defences were filed

PRACTICE AND PROCEDURE – stay of proceedings – application to enforce judgment obtained in Netherlands Antilles – whether proceedings should be stayed pending execution by bailiff of the District Court of Amsterdam against shares of defendant’s subsidiary

EVIDENCE – claim for public interest immunity over documents sought by accused – public interest in maintaining working relationship between law enforcement agencies in Australia and Vanuatu – disclosure of documents not in public interest for administration of justice as documents not assist accused’s case any more than is currently available – claim for public interest immunity upheld

MORTGAGES – mortgages and charges generally – the mortgage – mortgage to secure borrowings – possession of property – whether plaintiff was estopped from charging interest – whether interest enforceable on account of unconscionability – whether defendant repaid principal due under the mortgage – whether defendant in default under the mortgage – whether plaintiff entitled to possession – order of possession made

APPEAL - Criminal Appeal Act 1912 (NSW), s 5F(3A) - whether exclusion of evidence substantially weakens prosecution case - excluded evidence of statements capable of interpretation as admissions of sexual impropriety made by respondent to complainant - exclusion of evidence significantly weakened Crown case APPEAL - Surveillance Devices Act 2007 (NSW) (“SDA”), s 17 - whether issue of surveillance device warrants should be limited only to offences of a certain type, “serious crime” - SDA specifically confers power to issue warrants in the investigation of indictable offences - respondent charged with indictable offences - warrant issued properly - excluded evidence admissible APPEAL - Evidence Act 1995 (NSW), s 90 - where Crown concedes complainant was “agent of the state” - R v Broyles [1991] 3 SCR 595 - The Queen v Swaffield; Pavic v The Queen [1998] HCA 1; 192 CLR 159 - R v Burton [2013] NSWCCA 335 - evidence neither unfair nor unreliable - obtaining corroborative evidence in the public interest - public policy - decision to exclude evidence legally flawed - appeal upheld

CRIMINAL LAW - sentencing - Applicant pleaded guilty to one count of attempted aggravated break and enter with intent to commit serious indictable offence (ss.113(2) and 344A Crimes Act 1900) - two further offences taken into account on a Form 1 - whether sentencing Judge erred in declining to find special circumstances - issues raised on appeal not raised at first instance - no error disclosed - appeal dismissed

PRACTICE AND PROCEDURE – application to disallow amendments to the amended statement of claim – where contended that amended statement of claim cannot be established on evidence – where the form of the pleading attacked – whether amended statement of claim does not sufficiently plead elements necessary to exclude indefeasability under s 42 of the Real Property Act 1900 (NSW) – whether to disallow the amendment under the Uniform Civil Procedure Rules 2005 (NSW).

CRIMINAL LAW – application for judge alone trial – Applicant charged with wilful misconduct in public office – consideration of principles concerning applications for judge alone trial – whether extensive media publicity will adversely affect Applicant’s trial –steps available to mitigate impact of adverse media publicity – likely issues in the trial operate in favour of maintaining jury – application dismissed

CRIMINAL LAW - pre-trial application - objection to admissibility of evidence obtained under interception warrants - challenge to validity of interception warrants - whether Federal Magistrate was authorised under s. 6D Telecommunications (Interception and Access) Act 1979 (Cth) to issue interception warrants - whether Federal Magistrate is an “eligible Judge” under s. 6D - held Federal Magistrate so authorised - interception warrants valid

JUDICIAL REVIEW – costs assessment – procedural fairness – documents before costs review panel without knowledge of plaintiff – adequacy of reasons of costs review panel when the two panellists disagree

CORPORATIONS – winding up – application to set aside statutory demand –whether verifying affidavit was sworn prior to statutory demand – whether verifying affidavit verifies debt the subject of the demand for the purposes of s 459E(3) of the Corporations Act 2001 (Cth). CORPORATIONS – winding up – application to set aside statutory demand – where Part XVB of the Customs Act 1901 (Cth) applied to dealings that gave rise to debts – Whether debts unrecoverable for illegality. CORPORATIONS – winding up – application to set aside statutory demand – whether demands an abuse of process.

DAMAGES – assessment of damages – claim for damages pursuant to Compensation to Relatives Act – where liability admitted – where losses and gains to the estate to be set off in determination of plaintiff’s claim – whether losses to the plaintiff consequent upon the death of the deceased are more or less than the financial benefits accruing after death – where calculation of damages dependent upon multiple integers

PRACTICE AND PROCEDURE – discovery – documents bearing upon defendant’s knowledge or intention – relevance to issues of breach of duty and misleading or deceptive conduct.

APPEAL – application for leave to appeal under s 500(2) of the Corporations Act 2001 (Cth) – where application not opposed and security for costs provided – leave granted – no question of principle

APPEAL – appellant unrepresented – no issue of principle – no error in fact finding revealed – short form reasons

CORPORATIONS – winding up – application to terminate a winding up – where company failed to notify ASIC of a change of registered office – where company did not receive a demand sent by a creditor – where that creditor successfully brought an application to wind up the company in the company’s absence – where liquidator consents to termination of the winding up – whether company is solvent and winding up should be terminated.

COSTS – defendant successful at final hearing - judgment for plaintiff in sum of $50,000 offered - offer involved genuine compromise – UCPR 42.15A triggered – no reason to otherwise order – costs ordered on indemnity basis

CRIMINAL LAW – proceeds of crime – intersection between inquisitorial and accusatorial proceedings – whether examination orders should be made pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) – whether examination hearings should be postponed until after criminal trial is completed – whether Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 621 remains good law