Cases and authorities

CRIMINAL LAW – appeal against conviction - function and duty of trial judge in summing up to jury – contention that trial judge expressed agreement with matters favourable to Crown and continuously undermined defence arguments causing unfair trial and miscarriage of justice – need to consider in context of entire summing up - single complaint raised at trial on point lacking merit – other complaints raised for first time on appeal – leave to appeal refused

Criminal law – sentencing – arson – aggravating features – insurance job – whether judge erred by taking into account financial gain – where aggravated offence not charged – whether judge erred in taking into account potential for fire to spread – special circumstances – parity and proportionality – meaning of “substantial” in context of assessment of criminality – error established – re-sentencing

CRIMINAL LAW – criminal appeal – order entered – application to set aside or vary order within 14 days of entry of judgment – Criminal Appeal Rules r 50C(2) – criteria to be satisfied to justify re-opening – misapprehension of fact or law materially affecting judgment in the appeal – further evidence – proposed re-opening of appeal to remedy deficiency in material presented at hearing – application dismissed.

CRIMINAL LAW – leave to appeal – against conviction – whether inconsistent verdicts – whether guilty verdicts unreasonable in light of acquittals on other counts

CRIMINAL LAW – appeal – sentence – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – whether error in finding that offender was sleep deprived exacerbated by effects of drug usage – whether error in rejecting material on deprived early childhood – whether findings open on evidence - procedural fairness

APPEAL: conspiracy to defraud - insurance company – life insurance policy over second applicant’s life – first and second applicant agreed to obtain policy and that second applicant would commit suicide – first applicant ultimate beneficiary – second applicant did not commit suicide – fraud lay in obtaining policy dishonestly – concealed facts they had a duty to disclose. CONVICTION APPEAL: unreasonable verdict – no submissions in support – evidence of agreement very strong – alleged failure of trial judge to give directions about admissions and fact that one of the applicants was alive – no such directions sought or required – Criminal Appeal Rule 4 applies – complaint that counsel “flagrantly incompetent” in not raising good character of each applicant in the form of lack of recent convictions – reception of evidence from trial counsel – material suggested that if character raised Crown could have rebutted it – forensic reasons identified – complaint that trial judge allowed Crown to adduce additional evidence at trial without adequate notice – evidence of insurance underwriter as to whether cover would have been offered if intention to commit suicide disclosed – additional evidence not opinion evidence – no error by trial judge in allowing evidence to be adduced - both applicants’ appeal against conviction dismissed. SENTENCE APPEAL: no error by sentencing judge in determining objective seriousness of the offence – duration of the conspiracy substantial – conspiracy motivated by greed – degree of planning – role of each applicant – finding of special circumstances – trial judge entitled to refer to other sentencing criteria in adjusting non parole period – sentence not manifestly excessive – both applicants’ appeal against sentence dismissed

DEFAMATION – procedure – pleadings – imputations – whether imputations do not differ in substance – where imputations pleaded in alternative

APPEAL – civil – decision of magistrate of Local Court – where magistrate failed to apply correct statutory test to allow prosecution to proceed on indictment – whether grant of leave an interlocutory order

CRIMINAL LAW – Application for separate trials of co-accused – Evidence proposed to be adduced admissible against one co-accused but prejudicial and inadmissible against the other co-accused – Evidence in dispute included transcript of police interview with one co-accused and intercepted telephone conversations – Generally desirable that co-offenders be tried together – Whether in this case appropriate to make an order for separate trials based on likely prejudice – Likelihood of prejudice arising from inadmissible statements by the co-offender in the course of an intercepted conversation and such statements capable of having been made during ‘unguarded conversations – Whether prejudice to one co-accused could be overcome by directions to the jury – Held unlikely that directions to jury in relation to highly prejudicial evidence could overcome prejudice – Discretion to order separate trials under s 29(3) Criminal Procedure Act 1986 exercised – Separate trials of co-offenders ordered

INJUNCTION – defamation – interlocutory relief – restraining defendant from publishing defamatory material – removal of defamatory articles and tweets – where defendant continues to defy previous orders for removal by court

PROCEDURE – Civil – Applications for summary dismissal of or alternatively an order striking out the Amended Statement of Claim pursuant to UCPR Rule 13.4 on the basis of advocates’ immunity from suit – First and second defendants were respectively a solicitor and barrister who had conduct of plaintiff’s proceedings in a cross-claim against an Owners Corporation in the Local Court and subsequent appeal to Supreme Court and Court of Appeal – Plaintiffs in Amended Statement of Claim alleged negligence by defendants, breach of fiduciary duty, misleading and deceptive conduct and other causes of action in relation to alleged negligent advice – Relevant advice was firstly advice to pursue cross-claim proceedings in the Local Court and secondly advice to pursue appeal to the Supreme Court – Local Court had dismissed cross-claim on the basis of an expiration of limitation period and on the plaintiffs’ lack of standing – Supreme Court appeal was also dismissed. ADVOCATES’ IMMUNITY FROM SUIT – Defendants claimed no cause of action was sustainable because of the doctrine of advocate’s immunity – Relied on D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 – Plaintiffs relied on exception to doctrine where advice went to the issue of jurisdiction or locus standi to bring and pursue a cross-claim in circumstances where the alleged damage to property related to the common property on a strata plan not the plaintiff’s property – Held that whether the doctrine applied or not was a triable issue – There was a triable issue as to whether or not the legal advice was outside the scope of the doctrine because it went to the appropriate forum to commence proceedings in – The proceedings arguable did not constitute, directly or indirectly, a challenge to or traversing of the decision of the Local Court – Applications dismissed

ADMINISTRATIVE LAW – Judicial review of two administrative decisions – Review of decision of Proper Officer, Motor Accidents Authority of New South Wales to refer plaintiff’s case for further medical assessment under s 62(1A) Motor Accidents Compensation Act 1999 – Review of decision made by medical assessor following referral for further medical assessment – As to the decision of the Proper Officer to refer for further assessment – Whether there was additional relevant information to permit decision of Proper Officer to make referral under s 62(1A) – Need for Proper Officer to consider whether information specified on application for further assessment meets the criteria in s 62(1A) – Not sufficient for Proper Officer to accept applicant’s submission that information meets the criteria – Medical report relied upon in application for further assessment made by insurer was not ‘additional relevant information’ in the required sense – First challenged decision of Proper Officer to make referral found to have been affected by an error – As to the second decision by way of medical assessment – Whether Medical Assessor had considered all relevant criteria or differentiators listed in relation to the relevant DRE Category in the AMA Guides to the Evaluation of Permanent Impairment – In particular whether the medical assessor was required to have considered and determined the relevant criteria or differentiator that there be ‘no indication of impairment’ by reason of illness or accident for a person to be assessed as falling within DRE Category I – Held that the absence of any reference and consideration in the assessor’s Reasons is consistent with there having been a failure to consider a relevant matter which the medical assessor was required to assess in performing his statutory task – The assessment of the Medical Assessor was not made according to law – Decision of Proper Officer set aside – Certificate issued by Medical Assessor set aside

CONTRACTS – binding agreement – existence of binding agreement – intention to create legal relations – terms of settlement agreement reduced to deed – failure to execute deed – whether execution a mere formality – whether parties intended to be immediately bound CONTRACTS – binding agreement – subsequent conduct – subsequent conduct as admission – whether conduct solely referrable to existence of a contract CONTRACTS – authority of solicitor to bind client – actual or ostensible authority – litigious and non-litigious contexts CONTRACTS – termination – whether right to terminate arose – essential terms – intermediate terms – stipulations as to time – whether breach of essential term – whether fundamental breach of an intermediate term

JUDGMENTS AND ORDERS – Judgment debt – Interest accrued on judgment debt by operation of Civil Procedure Act 2005 NSW s 101 – Obligation to pay interest not penal EQUITY – Penalty – Judgments and orders – Judgment debt, with statutory interest accruing – Judgment by consent – Contract of compromise – Interpretation – Obligation to pay interest not penal INTEREST – Agreements to pay interest – Award of interest on debts and sums certain - Judgment debt – Civil Procedure Act 2005 NSW s 101 – Obligation to pay interest not penal

CONTRACTS – testamentary agreement – existence of binding agreement – no written agreement – alleged agreement constituted by oral representations and conduct – inconsistent accounts of conversations – family context – intention to create legal relations – adequacy of consideration CONTRACTS – mutual wills – whether parties entered agreement not to alter or revoke wills without notice to the other – need for clear and cogent evidence – consideration of circumstances – inferences to be drawn – intentions of the parties EQUITY – laches, acquiescence or estoppel – inaction on part of plaintiff in asserting legal rights – state of knowledge – whether plaintiff should be precluded from recovery PROPERTY – interests in property – no written instrument – doctrine of part performance – whether acts unequivocally referable to existence of contract PROPERTY – indefeasibility – allegation interest in property held on trust – no allegation of fraud on part of registered proprietor – whether indefeasibility of title operated to defeat plaintiff’s claim

POSSESSION – Trustee claims entitlement to vacant possession of property –defendants claim possession and right to occupy – agreed that Deed of Family Arrangement in 1993 allowed defendant’s mother right of occupancy for her life – whether Deed created interest in property for defendants – held that Deed did not create interest in favour of anyone other than defendant’s mother – interest ceased on her death – defendants have no legal or equitable interest in property – Trustee entitled to possession of property – cross-claim – cross-claim dismissed – execution of judgment stayed to allow defendants to find alternative accommodation

CONTRACT – Specific performance of dispute resolution clause – Where parties agreed to refer dispute to independent expert determination – Where one party refused to execute Expert Determination Agreement – Proper construction of primary agreement and Expert Determination Agreement

DAMAGES – claims for nervous shock and associated claim under the Compensation to Relatives Act by members of the family of a deceased killed in a helicopter accident DAMAGES – where damages sought by the owner and bailee of damaged helicopter – whether claim an apportionable claim under the Civil Liability Act 2002 (NSW) DAMAGES – apportionment – where three parties found to have breached their duty of care – where breaches found to be causative of the accident – necessity to compare culpability and causal potency in order to apportion responsibility DAMAGES – action by employer against another tortfeasor for recovery of compensation payments made in favour of deceased worker – where employer was found to have breached its duty of care to deceased worker – whether that finding against the employer denied it the benefit of statutory indemnity in respect of payments made in favour of the deceased worker DAMAGES – action by employer against another tortfeasor for recovery of compensation payments made in favour of deceased worker – whether employer entitled to interest on damages awarded DAMAGES – action by employer against another tortfeasor for recovery of compensation payments made in favour of deceased worker – whether two year limitation period applied in respect of the commencement of proceedings

CIVIL LAW – High Risk Violent Offender – application for mandatory examination pursuant to s15(4) Crimes (High Risk Offenders) Act 2006 – application for interim detention orders or interim supervision orders – defendant charged with further offences – defendant remains in custody bail refused once his sentence expired - whether the interim orders can commence at an unspecified future date

INSURANCE – calculation of interest under s 57 of the Insurance Contracts Act 1984 (Cth) – date from which it was unreasonable for insurers to withhold payment; COSTS – plaintiff successful overall but not on one major issue – whether plaintiff should be deprived of costs in relation to that issue – whether that issue was clearly dominant or separable; COSTS – first defendant settled with plaintiff immediately before trial and entered submitting appearance save as to costs – whether second and third defendants should pay first defendant’s costs of proceedings or costs thrown away in respect of subpoenas to produce

WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – whether applicant employer denied procedural fairness before Arbitrator – where employer relied on s 57 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) as disentitling worker to weekly compensation – where question raised as to reasonableness of worker’s failure to continue in employment – whether provision of “suitable duties” under injury management plan was put in issue WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – where Presidential member determined whether applicant employer had given notice disputing liability in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether when doing so Presidential member failed to engage with substance of employer’s argument

CORPORATIONS – winding up – winding up order made in default of appearance – application for termination of winding up – whether satisfactory explanation for absence of representation upon making of winding up order – whether application should proceed under (NSW) Uniform Civil Procedure Rules 2005, r 36.16 or (CTH) Corporations Act 2001, s 482 – where no defence to winding up order at date of order – appropriateness of proceeding under s 482 – whether condition founding winding up order still exists – whether commercially and morally safe to entrust management of company to directors – absence of opposition to termination of winding up by petitioning creditor or liquidator – held, winding up terminated.

APPEAL FROM LOCAL COURT – whether Magistrate erred in refusing to set aside default judgment – whether any person legally competent to prosecute the appeal - whether defence arguable

PROCEDURE – civil – consent judgment – application to set aside – whether judgment entered irregularly

ORDERS – undertakings – where order expressed to be upon undertaking – whether order records undertaking given or is conditional upon undertaking being given

PROCEDURE – civil – interlocutory issues – application for determination of separate quantum issues

APPEAL – appeal from NCAT – statutory construction - 6(1)(b) of the Retail Leases Act 1994 – extrinsic material

REAL PROPERTY – Crown land – sub-leases of berths in a marina – whether use of certain additional berths by sub-lessor constituted breaches of headlease – whether sub-lessor in breach of sub-leases by doing something which might prejudice or give grounds for termination of its interest under headlease – whether existence of additional berths required sub-lessor to vary tenant’s contributions ENVIRONMENTAL PLANNING LAW – Local Environmental Plan provides that agreements imposing restrictions upon the carrying out of development in accordance with consent do not apply – whether carparking provisions in sub-lease are inconsistent with condition of development consent – whether provisions impose restriction upon the carrying out of development in accordance with consent – Pittwater Local Environmental Plan 1993, clause 39(1) REAL PROPERTY – sub-leases of berths in a marina – sub-lessees obliged to pay share of Outgoings – construction of definition of Outgoings – whether certain amounts paid or payable by sub-lessor “in connection with” marina – whether sub-lessor under an obligation to pay certain amounts – whether certain amounts fell within particular paragraph of definition – whether sub-lessor impermissibly charged amounts as Outgoings

PROCEDURE – COSTS – Where proceedings settled at mediation – Where no determination on the merits – Whether unreasonable approach of one, or both, parties which prompted the litigation – All parties are trustees – Significant amount of evidence relied upon in support of notice of motion for costs

PRACTICE AND PROCEDURE – Costs – Security for costs – Whether reason to believe that corporation will be unable to pay its costs – Whether exercise of discretion requires consideration of the prospects of success or failure of a party’s action – Whether cross claim against third party is defensive in nature – Quantum of security

CIVIL PROCEDURE – motion by defendant to set aside default judgment for possession of land – irregularity relating to defendant’s status as a person under a disability inconsequential – no arguable defence - delay

CRIMINAL LAW – appeal – sentencing – people smuggling – mandatory minimum sentence

CRIMINAL LAW – appeal – sentence – whether error in finding that offence in mid-range of seriousness – whether error that no connection between applicant’s offending and depressive illness existed – whether failure to take into account mitigating factors – whether sentencing judge erred in inviting Crown to give opinion as to sentence – whether sentence manifestly excessive – no ground of appeal upheld – appeal allowed to amend agreed error in commencement date of sentence

CRIMINAL LAW – sentence appeal – manslaughter – applicant part of a group who attacked victim – death caused by a firearm, the presence of which was unknown to the applicant – relationship between sentence imposed for manslaughter and pre-sentence custody – principle of totality – whether error of fact on part of sentencing judge – whether finding of special circumstances reflected in sentence – whether sentence manifestly excessive – application of parity principle – appeal dismissed.

CRIMINAL LAW – appeal pursuant to s 5F(3)(a) of Criminal Appeal Act 1912 – refusal by District Court to allow applicant to withdraw plea of guilty – no error of law in approach by District Court – no error in fact finding – no error in exercise of discretion – appeal dismissed.

CRIMINAL LAW – sentence appeal – importing a commercial quantity of a prohibited drug – whether opinion of psychologist wrongly rejected – whether denial of procedural fairness – factual basis for psychologist’s opinion not made out – psychologist’s conclusions going beyond his expertise – no denial of procedural fairness – sentencing judge entitled to reject psychologist’s conclusions.

CRIMINAL LAW – sentence appeal – whether presentence custody taken into account – whether sufficient reasons given CRIMINAL LAW – sentence appeal - asserted error in assessment of the objective seriousness – joint criminal enterprise – assessment of the applicant’s role in the enterprise – whether error in the way sentencing judge considered the amount of manufactured drug – whether undue reliance placed on expert opinion regarding the amounts of methylamphetamine that could theoretically be yielded from precursors CRIMINAL LAW – sentence appeal – whether sentence manifestly excessive

CRIMINAL LAW – appeal by Crown under s 5DA, Criminal Appeal Act on the basis that respondent failed to fulfil undertaking of assistance to authorities – respondent in evidence in sentence proceedings offered to give evidence against alleged co-offender – combined discount for plea of guilty and assistance – respondent failed to give evidence at co-offender’s committal proceedings – whether promise to give evidence amounted to undertaking to assist authorities – failure of sentencing judge to comply with s 23(4), Crimes (Sentencing Procedure) Act – discretionary considerations arising from amount of discount and delay in bringing appeal

CRIMINAL LAW – sentence appeal – driving in a manner dangerous occasioning death – victim was pillion passenger on a motor cycle driven by applicant – applicant intoxicated and motor cycle unsuitable for a pillion passenger – no error in assessment of objective seriousness of offence – no obligation to find special circumstances – delay adequately taken into account – sentence not manifestly excessive – appeal dismissed.

LEGAL PRACTITIONERS - disciplinary proceedings - solicitor removed from Roll for dishonest misappropriation of client's money and obstructing Legal Services Commissioner - whether Tribunal considered solicitor's case that the misappropriation was a mistake - finding of deliberate dishonesty upheld - whether Tribunal had failed to apply Briginshaw standard - whether solicitor was denied procedural fairness in not being permitted to issue further subpoenas - whether solicitor had reasonable excuse for hindering and delaying Commissioner’s investigation - whether Commissioner's application in the Tribunal was duplicitous - whether s 674 of Legal Profession Act 2004 (NSW) created a single offence or two offences - whether each class of conduct alleged to amount to obstructing or hindering the Commissioner's investigation should have been the subject of a separate complaint - whether error in Tribunal's order removing his name from the Roll

EQUITY – where title to property had been found to be held in unequal shares by plaintiff and defendant – where trustees for sale of property had been appointed – where sale of property hindered by defendant – where costs of trustees and their solicitors associated with sale increased by defendant’s conduct – orders for reimbursement of trustees and their solicitors from proceeds of sale – orders permitting the sale of defendants’ belongings if unclaimed – orders permitting payment into court of defendant’s share of sale proceeds if unclaimed. COSTS – indemnity costs – likelihood of protracted costs assessment – whether a gross sum costs order should be made under Civil Procedure Act, s 98(4)(c).

TORRENS SYSTEM – Caveats – Extension – Serious question as to whether land held on trust for plaintiffs

COSTS – Indemnity costs – Defendant unreasonably opposes order for possession and delays sale process after trustee appointed – Conveyancing Act 1919 (NSW), s 66G

PROCEDURE – civil – parties – joinder of third plaintiff PROCEDURE – civil – pleadings – amendment – statement of claim

INTERLOCUTORY INJUNCTION – application to restrain exchange of contracts following tender to purchase public land – shortlisted tenderer excluded after related company employed executive responsible for tendering process – alleged damage to integrity of tendering process – balance of convenience – likely damage to vendor if restrained from entering into contract concerning the sale of the property. NATURAL JUSTICE – whether statutory State owned corporation amenable to judicial review in conducting tender to dispose of land – whether obligation to afford natural justice – nature of corporation – nature of function exercised – source of power to exclude tenderers – prospect of establishing amenability to judicial review and obligation to afford natural justice weak – prospect of establishing breach of obligation weak – whether final relief would extend to preventing sale. HELD: Injunction based on alleged breach of procedural fairness refused. CONTRACTUAL DUTY OF FAIR DEALING –prospects of establishing process contract relating to expressions of interest process – inconsistency with express terms of documents issued – prospects of establishing existence of agreement – prospects of plaintiff being re-admitted to tender process – prospects of success low. HELD: Injunction based on alleged contractual duty of fair dealing refused.

CORPORATIONS – rectification of share register – where Plaintiff contended that Defendant held half of Company’s shares on trust for Plaintiff – where significant issues of credit of the Plaintiff and Defendant exist – where agreement between the Plaintiff and Defendant said to give rise to the trust a ‘gentlemen’s agreement’ – whether ‘gentlemen’s agreement’ enforceable in law – whether subsequent document executed by Defendant – whether basis for rectification of share register under s 175 of the Corporations Act 2001 (Cth) has been made out.

CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – where the statutory demand did not comply with s 459E of the Corporations Act 2001 (Cth) – where address for service of an application to set aside the demand was located in Victoria – whether address for service was misleading – whether service required to comply with Service and Execution of Process Act 1992 (Cth) – whether defective address on the demand led to substantial injustice. CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – where demand served by post – whether compliance period had elapsed since service of demand. CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – whether Retail Leases Act 2003 (Vic) s 31 applied to give rise to a genuine dispute as to the existence of the debt the subject of the demand. CORPORATIONS – winding up – winding up in insolvency – application to wind up company for failure to comply with statutory demand – whether presumption of insolvency displaced.

APPLICATION FOR STAY – whether risk respondent will be unable to repay monies without difficulty or delay – whether risk respondent will dissipate assets – balance of convenience – interests of justice

TORTS – occupier of licensed premises – where first respondent assaults appellant on premises – whether second respondent negligent in not informing staff of any need for increased supervision of first respondent – whether second respondent was negligent in failing to install a CCTV camera – whether such precautions would have prevented assault DAMAGES – intentional torts – assault – assessment of extent of appellant’s injury – whether primary judge erred in not accepting appellant’s evidence – whether primary judge erred in not awarding aggravated and exemplary damages

COSTS – application to vary pursuant to UCPR, r 36.16(3A) – offer of compromise – UCPR, r 42.15A