Cases and authorities

ADMINISTRATIVE LAW – judicial review – workers compensation – decision of Medical Appeal Panel – evaluation of permanent impairment – whether jurisdictional error – whether error of law – errors claimed not made out – mere disagreement about level of impairment not sufficient to demonstrate error susceptible to judicial review – no basis for judicial review – COSTS – application for certificate under Suitors Fund Act 1951 – certificate refused

CRIMINAL LAW – sentencing – importing border controlled drugs – mother of three children under 18 – father denied visa because of applicant’s criminality – effect of sentence on applicant’s family – applicant previously convicted of importing border controlled drugs – whether sentence manifestly excessive

CRIMINAL LAW - Crown appeal against sentence - residual discretion - guilty pleas to aggravated sexual assault and indecent sexual assault - offender’s earlier guilty pleas to sexual assaults upon same complainant at same time disposed of under Pre-Trial Diversion of Offenders Act 1985 (NSW) - procedure not available in respect of later offences - offender sentenced to bonds - Crown appeal allowed and custodial sentence imposed - offender served almost a year in prison - High Court allowed further appeal and remitted matter to this Court and restored original orders of District Court - appellable error in original sentence established - having regard to the offender’s time in custody and other subjective circumstances, Crown appeal dismissed

CRIMINAL LAW – Appeal - Questions of law referred to Court of Criminal Appeal from Land and Environment Court of New South Wales – LEC proceedings stayed pending outcome - Appellant commenced prosecution of respondent in LEC for water pollution under Protection of the Environment Operations Act 1997 – Summons identified ‘manner of contravention’ as either specified instance of pollution or arising from s 257(1) of the Act – Whether summons bad for duplicity – Whether s 257(1) negated need to provide particulars of pollution by occupier of premises – CRIMINAL PLEADING – Held that summons was bad for duplicity – Unclear whether prosecutor relied upon contravention specified or some other contravention in relation to s 257(1) – s 257(1) relates to proving liability for contravention – s 257(1) is evidentiary – the section only obviates need to prove identity of offender and facilitates proof of causation – the occupier of premises at and from which pollution occurs is taken to have caused the pollution unless matters specified in s 257(1)(a), (b) and (c) are proved – particulars as to act of pollution alleged to have occurred still required - Prosecutor relying on s 257(1) must prove that pollution occurred and how – Appeal dismissed

CRIMINAL LAW – appeal against conviction – attempt to possess marketable quantity of border controlled drug (heroin) – co-accused – circumstantial evidence case – appellants’ version of events implausible – verdicts of guilty not unreasonable or unsupported – leave to appeal granted – appeal against conviction dismissed CRIMINAL LAW – appeal against conviction – attempt to possess marketable quantity of border controlled drug (heroin) – co-accused – whether error in failing to order separate trial – whether admission of certain evidence regarding one accused prejudicial to case of co-accused – evidence admissible - no error CRIMINAL LAW – appeal against sentence – attempt to possess marketable quantity of border controlled drug (heroin) – co-offenders - no error in finding intention to acquire entire consignment – no error in assessment of relative culpability – no justifiable sense of grievance between sentence imposed on appellant and co-offender – sentence not manifestly excessive – leave to appeal granted - appeal against sentence dismissed

CRIMINAL LAW - appeal against conviction - appellant convicted of causing injury to a person believed to be a witness in judicial proceedings - Crimes Act 1900 (NSW), s 326(2) - trial judge misdirected jury as to elements of offence - counsel made no objection during trial - misdirection favourable to accused - no miscarriage of justice - appeal dismissed CRIMINAL LAW - Crown appeal against sentence - Crown abandoned reliance on much of the criminal conduct - no error in sentencing on basis put to sentencing judge by the Crown - no tailoring of sentence - sentence not an “affront to justice” or “plainly unjust” - Crown appeal dismissed

SENTENCING – social security fraud – suspended sentences – appropriateness of sentencing option – effectiveness in reducing recidivism rates – erroneous comments in the course of submissions – whether such comments guided sentencing outcome – general rule that comments in argument cannot ground appeal – where judgment reserved – appeal dismissed

Criminal law – sentencing – dangerous driving causing grievous bodily harm – horrendous injury to young victim – offender with intellectual disability – whether sentencing Judge erred in disregarding psychologist’s opinion – evidence not disputed – error established –

CONTRACTS – interpretation – share subscription agreement – whether parties to a separate prospecting agreement “waived” conditions precedent to that agreement – whether issuer under subscription agreement “reasonably satisfied” the other parties thereto that conditions precedent to the prospecting agreement had been “waived” WORDS AND PHRASES – “waived” – “waiver” – whether expression of understanding that conditions were satisfied constituted a waiver of those conditions COSTS – appeal from order for indemnity costs – Calderbank letter – offer characterised by appellant as derisory and inviting capitulation – whether error in exercise of costs discretion

TORTS – negligence – findings of fact – whether the primary judge erred in concluding that the Council did not perform work at the location of the appellant’s fall and was therefore not responsible for the appellant’s injury – whether the primary judge erred in, alternatively, accepting and declining to accept certain evidence and in not giving sufficient weight to other evidence

PROCEDURE – costs – security for costs – where reasonably likely that plaintiff corporation will be unable to pay costs – where plaintiff would be under duty to strike further levy on each owner to contribute to administrative fund – ability of plaintiff to have recourse by way of indemnity to trust fund or similar no answer to application for security for costs – where defendant would not be able to enforce indemnity with cooperation of plaintiffs – held, order for security for costs made.

PROCEDURE – disclosure – notice to produce – application to set aside notices to produce – substantive application to terminate deed of company arrangement – where applicant entitled to adduce evidence not only to prove grounds for termination but also relevant to exercise of discretion – test of relevance – sufficient that it is “on the cards” that documents sought in some way add to available evidence – strength of defence does not bear on question of relevance – Practice Note SC Eq 11 – early production warranted by practical considerations – validity of notice under (NSW) Uniform Civil Procedure Rules 2005, r 34.1 – lack of specificity.

CORPORATIONS – winding up – application for leave under Corporations Act 2001 (Cth) s 459S – whether sufficient explanation for not raising ground of opposition CORPORATIONS – winding up – application for leave under Corporations Act 2001 (Cth) s 459S – whether the ground relied on by the company in leave application is material to proving solvency

EQUITY - Procedure - Application by defendant for dismissal of proceedings due to non-compliance with security for costs order

INJURIOUS FALSEHOOD – where plaintiff unable to plead with specificity the words and conduct alleged to have conveyed false statements concerning its goods or business – whether an amendment should be allowed on the basis that the plaintiff will interrogate the defendant as to those matters – whether to allow the amendment would accord with the dictates of justice

COSTS

LEGAL PRACTITIONERS – New Zealand lawyer seeking local practising certificate – registered under Trans-Tasman Mutual Recognition Act – whether fit and proper person to hold a practising certificate – failure to disclose disciplinary proceedings, complaints and convictions in New Zealand – duty of candour in application for practising certificate under Legal Profession Act, as well as under mutual recognition legislation

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – whether reference date available for claim – reference date arises on last business day of month – whether contract terminated before last business day of month – construction of notice of termination – whether subsequent agreement as to when termination would take effect – whether inclusion of item concerning amount of security called upon by principal invalidates payment claim

JUDGMENTS AND ORDERS – application to set aside default judgment – whether defendants have demonstrated arguable defence on the merits – allegation of unconscionable conduct on the part of the bank in enforcement of securities – no substantive defence to underlying claim identified – whether judgment entered irregularly, illegally or against good faith PROCEDURE – application for stay on hardship grounds – whether prematurely made

SUCCESSION – wills – construction of will – whether clear that error in expression occurred – whether intended expression clear – typographical error – whether “of” should be read as “or”

COSTS – indemnity costs – whether the plaintiff commenced or continued its action when it should have known it had no prospects of success – Calderbank letters – whether the plaintiff unreasonably rejected the defendants’ Calderbank offers – whether the defendants achieved a better outcome than under the Calderbank offer – where no evidence was adduced as to the defendants’ costs

CRIMINAL LAW – sentence – manslaughter by gross criminal negligence – related offences –­ deceased the victim of sustained violence and cruelty – aggregate sentence ­– assistance to authorities –­ objectively serious offence of manslaughter

CRIMINAL LAW – application for leave to appeal against sentence – 2 charges of supplying prohibited drugs – related Form 1 matters – strong subjective case, including positive response to drug rehabilitation – failure of sentencing judge to take into account pre-sentence custody – sentence reduced to time served

CRIMINAL LAW – appeal – s5F Criminal Appeal Act 1912 – decision to admit tendency and coincidence evidence – relevance – probative value – expert evidence relating to effects of Nitrous oxide – whether denial of procedural fairness – whether proper consideration of possibility of contamination

DEFAMATION – defences – contextual imputations – whether primary judge erred in holding that certain contextual imputations were impermissibly imprecise – whether primary judge misapplied principles stated in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137

REAL PROPERTY – termination of co-ownership – where majority of co-owners wish to proceed to sale – where co-owner who was opposed to sale did not appear at hearing – whether appointment of trustee for sale under s 66G of the Conveyancing Act 1919 (NSW).

PRACTICE AND PROCEDURE – application to set aside notice to produce – plaintiffs applied for gross sum costs order – first defendant seeks production of tax invoices, itemised bills and funding agreements relating to the plaintiffs’ legal costs – whether it must appear likely that the documents will materially assist the applicant – held, dismissing the plaintiffs’ application: the “on the cards” test applies in New South Wales and, in any event, the question is whether disclosure is necessary for the resolution of the real issues in dispute

PRACTICE AND PROCEDURE – where parties reached agreement on interim regime – application to read affidavit – where no dispute presently before Court for determination – affidavit not read

FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption - whether adoption clearly preferable to any other order that could be made with respect to care of children – relevance of realistic possibility of restoration - where placement with applicants well-established and beneficial – where applicants’ parenting capacity superior – where children have history of disrupted attachments – where children would be at greater risk of abuse if restored - where children identify with proposed adoptive family - held, preserving possibility of restoration would not be in best interests of children and adoption is clearly preferable to any other order that could be made with respect to their care FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – whether consent of birth mother should be dispensed with - where children in care of approved carers with whom they have established relationship – where adoption would promote children's welfare – held, necessarily also in children's best interests to make consent dispense order so as to allow adoption order to be made FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - adoption – adoption plans - registration – whether provisions in children’s best interests and proper in the circumstances – where plan does not contravene adoption principles and parties understand its provisions and freely enter into it - where registration would provide assurance in respect of contact for non-consenting birth mother – held, plan registered.

APPEAL FROM LOCAL COURT – Local Court Act 2007 (NSW) – whether the construction of a contract is question of law – whether variation of agreement entered into by solicitor and client for deferral of payment – whether Magistrate erred in finding that any variation of the agreement was void for want of consideration – general rule that to perform an existing duty is not fresh consideration

SUCCESSION – FAMILY PROVISION – Claim by adult disabled child of the deceased for family provision order under Succession Act 2006 out of the notional estate of the deceased and an order designating property as notional estate – The deceased provided for the bulk of his estate to pass to a close friend with whom he was in a relationship – Some provision for Plaintiff made in the Will – Estate fully distributed shortly after grant of Probate – Plaintiff’s application in time – No dispute that property should be designated as notional estate if order to be made for additional provision for the Plaintiff – Dispute as to what costs orders

APPEAL - conviction - sexual intercourse with a child - whether conviction unreasonable and not supported having regard to the evidence - evidence contained discrepancies and was insufficient upon which to base a safe conviction - appeal allowed - conviction quashed - verdict of acquittal entered

APPEAL – conviction appeal – guilty verdicts returned in relation to appellants –jury continued deliberations in relation to co-accused – one juror discharged on grounds of illiteracy and ill-health – whether right to appeal – whether appellants were “convicted” – whether Court of Criminal Appeal has jurisdiction – Criminal Appeal Act 1912 (NSW), s 5(1) CRIMINAL LAW – conviction – accused found guilty by jury – jury continued deliberations in relation to co-accused – significant evidence in writing – whether illiterate juror able to discharge his duty – whether failure or breach in the integrity of the trial – whether miscarriage of justice – Criminal Appeal Act 1912 (NSW), s 6(1) – Jury Act 1912 (NSW), s 73 JURY – illiterate juror – whether illiteracy ground for discharge of juror – questioning related to jury deliberations – Jury Act 1977 (NSW), s 53B WORDS AND PHRASES – “conviction” – “sentence” – Criminal Appeal Act 1912 (NSW), ss 2 and 5(1)

CRIMINAL LAW – evidence – compellability of spouse – whether court satisfied that witness aware of entitlement to object to giving evidence as a witness for the prosecution under s 18 of the Evidence Act

CORPORATIONS – personal property securities – notice of charges – failure to give notice – whether void under (CTH) Corporations Act 2001, s 266 –construction of Corporations Act, s 1504 – meaning of “void”

PROCEDURE – interlocutory process in nature of cross-claim – application to amend interlocutory process – where arguable case sought to be put on amended interlocutory process – whether prejudice occasioned to plaintiff of permitting amendment – absence of prejudice to defendant of not permitting amendment – held, leave to amend interlocutory process declined.

PROCEDURE – whether costs order should be varied – application to vary order filed outside the 14-day limit prescribed by rules – whether r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) confers power to entertain application

PROCEDURE – judgments and orders – notice of appeal – stay pending appeal – relevant factors

PROCEDURE – civil – application to set aside consent judgment by third defendant – judgment entered between first defendant and plaintiff – application of principles in James Hardie v Seltsam – effect of consent judgment between tortfeasors PROCEDURE – civil – application for adjournment – to have issue determined at time of substantive hearing

COSTS – plaintiff only successful on ground raised at hearing – no question of principle.

PRACTICE AND PROCEDURE – Application to amend List Statement – List Statement should contain only a summary of material facts, and not the evidence by which those facts are to be proved – Case management considerations CONTRACT – Dispute resolution clause – Whether claims are barred by parties’ agreement – Whether reasonably arguable that limitation period in s 236(2) of the Australian Consumer Law cannot be contracted out of

PROCEEDS OF CRIME – application for extension order refused by primary judge – whether appeal futile by reason of expiration of 15 month period from conviction day – leave refused – Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 applied

PROCEDURE – application for stay of orders

PROCEDURE – preparation of appeal book

AVIATION – carriage by air – carrier’s liability – limitation under Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 31 – electricity supply company contracted for supply of helicopter and pilot to undertake aerial inspection power lines – whether carriage under Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – whether employee of electricity supply company on board helicopter was a “passenger” – whether employee’s role to provide information to pilot about route and hazards made him a crew member – Fellowes (or Herd) v Clyde Helicopters Ltd [1997] AC 534 applied CONTRACT – breach of contract – carrier provided low flying helicopter and pilot to electricity supply company for aerial inspection of power lines – electricity supply company responsible for marking route plan with hazards and briefing pilot and crew – helicopter struck unmarked telecommunication wire – helicopter damaged and employee of electricity supply company catastrophically injured – whether pilot’s performance complied with contractual obligation of reasonable care and applicable laws and standards – whether electricity supply company under duty to mark all hazards – whether electricity supply company should have made relevant inquiries of telecommunication company – whether electricity supply company protected by contractual indemnity where contract provided for apportionment of liability for carrier’s losses resulting wholly or partly from electricity supply company’s actions – interpretation of indemnity clauses NEGLIGENCE – duty of care – aviation accident – carrier provided low flying helicopter and pilot to electricity supply company for aerial inspection of power lines – helicopter struck telecommunication catenary wire – electricity supply company employee suffered catastrophic head injuries – no helmet worn – if helmet worn injuries would have been significantly avoided – whether carrier under general law duty to require wearing of helmets where no enforceable statutory and regulatory requirements – whether employer under duty to require employees to wear helmets NEGLIGENCE – duty of care – aviation accident – during aerial inspection of power lines low flying helicopter struck telecommunication catenary wire – longstanding practice of aerial inspections and public information campaigns but no direct communication with telecommunication company – whether telecommunication company ought reasonably to have known of aerial inspections – breach of duty – whether telecommunication company should have taken steps to avoid risk posed by wire where it served no purpose and removal would be inexpensive – Civil Liability Act 2002 (NSW), s 5B NEGLIGENCE – causation – scope of liability – aviation accident – during aerial inspection of power lines low flying helicopter struck telecommunication catenary wire – power line not marked on route map – telecommunication line not marked – preferred route did not require crossing over power line – whether preliminary aerial inspection required – inspection would not have revealed hazard but would have avoided accident – whether carrier liable for materialised risk – Civil Liability Act 2002 (NSW), s 5D(1)(b) WORDS AND PHRASES – “passenger” – Civil Aviation (Carriers’ Liability) Act 1967 (NSW), s 4 WORKERS COMPENSATION – employer’s indemnity under z 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – employer paid compensation to injured employee – apportionment of liability between other responsible parties

CONTRACTS REVIEW ACT – procedural fairness - solicitor agrees with two brothers to purchase their sisters’ share of co-owned property on the basis that the solicitor borrows the whole of the purchase price on the security of the property and the brothers guarantee the loan – solicitor acts for one of the brothers – solicitor defaults on loan – lender takes possession – brothers seek to set aside mortgage and guarantee in proceedings against the solicitor – primary Judge grants relief under the Contracts Review Act 1980 (NSW) in respect of the original agreement – whether grant of relief available on the pleadings – whether the solicitor denied procedural fairness

PROCEDURE – application to set aside creditor statutory demand – summary dismissal – where originating process served interstate on registered office and on nominated address for service – whether originating process validly served under (CTH) Service and Execution of Process Act 1992 – absence of prescribed notice of service from process when served – held, no effective service of application to invoke jurisdiction – whether compliance with (NSW) Uniform Civil Procedure Rules 2005 sufficient for service – exclusion of UCPR by SEPA, s 8A – whether creditor estopped from denying validity of service – held, application summarily dismissed. PROCEDURE – leave to amend originating process – held, leave granted.

CORPORATIONS – winding up – application by liquidator for special leave to distribute surplus of assets in the liquidation of company – where surplus to be distributed to unitholders pursuant to a trust deed – where directions sought by liquidator as to allocating a vesting date of the trust – whether leave should be granted – whether direction should be given that the liquidator is entitled to terminate the trust, pursuant to the terms of the trust deed.

CORPORATIONS – winding up – application by liquidators for special leave under s 488(2) of the Corporations Act 2001 (Cth) to distribute surplus of assets in the liquidation of the company – where company had one contributory.

PROCEDURE – costs – order for costs on indemnity basis – where company unsuccessful in substantive application for leave under s 459S of the Corporations Act 2001 (Cth) – where cross-examination of director demonstrated lack of knowledge of the matters dealt with in his affidavit – whether order for indemnity costs. PROCEDURE – costs – where director joined as party to proceedings when company was deregistered – where director did not play active role in the motion – whether order for costs against director. PROCEDURE – costs – whether costs payable forthwith.