Cases and authorities

APPEAL - conviction - aggravated sexual intercourse without consent, s 61I Crimes Act 1900 (NSW) - whether trial judge failed properly to direct jury as to joint criminal enterprise - R v Tangye (1997) 92 A Crim R 545; Huynh v The Queen [2013] HCA 6; 295 ALR 624 APPEAL - conviction - whether trial judge failed properly to direct jury on circumstantial evidence - Shepherd v The Queen [1990 HCA 56; 170 CLR 573 - separate direction would have been unnecessary and confusing APPEAL - directions - Criminal Appeal Rules, r 4 - Criminal Appeal Act 1912 (NSW), s 5 and s 6(1) - no objection taken to directions at trial - leave to appeal refused APPEAL - conviction - whether verdict unreasonable and not able to be supported having regard to the evidence - Criminal Appeal Act 1912 (NSW), s 6(1) - Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 - appeal dismissed APPEAL - sentencing - parity, whether justifiable sense of grievance when sentence considered in relation to co-offender’s sentence - age of co-offender - KT v R [2008] NSWCCA 51; 182 A Crim R 571 - appeal dismissed

CRIMINAL LAW – appeal against sentence – whether the sentencing judge erred in his consideration of the evidence regarding applicant’s rehabilitation and delay between arrest and sentence –delay between arrest and sentence on the subject charges in part attributable to the applicant’s offending in Queensland and subsequent proceedings – relating thereto – sentencing judge took delay and rehabilitation into account as interrelated matters – delay and rehabilitation was taken into account and sentence reduced accordingly – sentencing judge found that the applicant had achieved some progress towards rehabilitation – whether the sentencing judge erred by not finding ‘substantial’ progress towards rehabilitation – the sentencing judge made a factual error as to the period over which the application’s progress towards rehabilitation took place – this did not give rise to error – appeal dismissed CRIMINAL LAW – appeal against sentence – incorrect amount of pre-sentence custody taken into account – sentence amended to accurately reflect length of pre-sentence custody

CRIMINAL LAW – procedure - application for extension of time in which to bring an application for leave to appeal against sentence – where delay properly explained – where error made out – extension of time granted CRIMINAL LAW - offences – murder – sentence -– applicant sentenced before the decision in Muldrock – where sentencing judge gave determinative significance to the standard non-parole period and engaged in a two stage process of sentencing – Muldrock error made out – court required to exercise sentencing discretion afresh CRIMINAL LAW – offences – murder – sentence – applicant took a “pen gun” to a function purportedly for the purpose of showing his friends – applicant also took ammunition – tension arose between two rival groups – applicant retrieved pen gun, loaded it and fired it at the opposing group, killing one person - whether offending properly assessed as falling in the mid-range of objective seriousness – where applicant 21 years of age at the time of offending – relevance of youth on sentence – whether offending exhibited immaturity – prospects of rehabilitation affected by continued drug use – remorse – where applicant sentenced at first instance to imprisonment for 21 years with a non-parole period of 16 - no other sentence warranted in law - extension of time granted – leave to appeal granted – appeal dismissed

PRACTICE – appeals – expedition – no question of principle

PRACTICE – stay pending appeal – monies already paid into court – whether exceptional circumstances need be shown where claim arises under Building and Construction Industry Security of Payments Act 1999 (NSW) – no evidence of prejudice – limited evidence of financial circumstances of respondent – appeal capable of being heard in 3-5 weeks – stay ordered

PRACTICE – appeals – security for costs – solicitor ceasing to act for appellant – appellant with history of default judgments against it – security ordered even though limited evidence of actual and anticipated costs

PROCEDURE – costs – application for stay of proceedings to refer dispute to arbitration under arbitration agreement – where stay application opposed by plaintiff – whether defendant entitled to indemnity costs – held, defendant not entitled to indemnity costs.

CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – application to terminate winding up order – adequacy of explanation for failing to oppose winding up order – where no actual notice of statutory demand and winding up application received by controlling minds of company – where debts for which statutory demand issued have been paid and solvency established – held, winding up order terminated.

CRIMINAL LAW – murder – evidence – tender of affidavit sworn by deceased in Family Court proceedings – unfairly prejudicial – tender rejected

PROCEDURE - settlement approval - order for settlement approval - order made

PRACTICE AND PROCEDURE – UCPR 17.7 - judgment on admissions – whether causation has been admitted on the pleadings – whether traverse of scope of liability – whether admissions clear and unambiguous

APPEAL - conviction - conspiring dishonestly to cause loss to a Commonwealth entity, s 135.4(3) and s 11.5(1) Criminal Code - whether directions of trial judge resulted in miscarriage of justice - timing of entry into conspiracy - expansion of participants within the conspiracy - appeal rejected APPEAL - sentence - whether trial judge failed to discount the sentence in light of applicant’s offer to facilitate the course of justice - no obligation to give weight to offer - no error found - appeal dismissed

CRIMINAL LAW – sentence appeal – murder – whether “Muldrock error” had occurred – offender sentenced in April 2006 – mental illness issues – disagreement between psychiatrists – an extension of time granted – “Muldrock error” established – whether lesser sentence warranted in law – application of s 6(3) of the Criminal Appeal Act 1912 – appeal allowed – on re-sentence no change to non-parole period but head sentence reduced.

CRIMINAL LAW – sentencing – sentencing adult for sexual offences committed as juvenile – whether sufficient allowance made for applicant’s youth at time of offending – whether sentence accorded with sentencing principles applied at time of offending – no need for further rehabilitation CRIMINAL LAW – sentencing – whether planning of type which aggravates offence pursuant to s 21A(2)(n), Crimes (Sentencing Procedure) Act 1999 (NSW) CRIMINAL LAW – sentencing – use of victim impact statement – statement not limited to harm directly resulting from offence CRIMINAL LAW – sentencing – whether to consider ground of manifest excess if specific error established – need for appeal court to determine appropriate sentence – not sufficient to ask if impugned sentence within range – Kentwell v The Queen [2014] HCA 37 applied – Criminal Appeal Act 1912 (NSW), s 6(3)

CRIMINAL LAW – appeal – conviction - whether trial judge erred in ruling that appellant did not discharge evidential burden required to put defences before jury – sudden or extraordinary emergency defence – self-defence – statutory requirements – whether trial judge erred in ruling on admissibility of evidence – nature of evidence – irrelevance – appeal dismissed CRIMINAL LAW – application for leave to appeal against sentence – whether trial judge erred in failing to make factual findings as to mental illness – whether trial judge erred in refusing to allow applicant to cross-examine on a victim impact statement - leave refused

APPEAL – application for leave – interlocutory judgment – dismissal of motion seeking concurrent hearing of numerous matters, issue of subpoenas and transfer of proceedings from the Land and Environment Court – no evidence that issues relating to application under Vexatious Proceedings Act 2008 (NSW) not raised in that proceeding – no issue of principle raised – whether practical prejudice to applicant

APPEAL – application for leave – pleading struck out summarily – want of due despatch – other older proceeding allowed to stand – no objection from two of three defendants – possible inconsistency of approach

EQUITY – trusts – bank lends funds to a company – the funds are used by the company to enable an individual to deposit funds in a term deposit with the bank – the deposit is security for a loan by the bank to a related company – whether the first company and the depositor intended to create a trust attracting the principles stated Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 – short form judgment

LEGAL PROFESSION – application to withdraw from criminal proceedings – conflict between accused and legal practitioners – doubt as to whether leave necessary – leave granted; PRIVILEGE – alleged waiver by lawyers – documents tendered to Court – conflict with client – tender refused.

PROCEDURE – civil – pleadings – statement of claim – service – application to set aside service of statement of claim – where plaintiff contends statement of claim was personally served – where no evidence supports contention that statement of claim was served

DEFAMATION – procedure – pleadings – application for leave to file fourth proposed reply – where proposed reply attempts to plead matter of defeasance identified in s 31(4)(c) of the Defamation Act 2005 (NSW) – requirement to plead adequate particulars to sustain contention that defendant had reasonable grounds to believe the opinion was not honestly held by each commentator when matter complained of was published – particulars not capable of supporting that contention

WILLS, PROBATE AND ADMINISTRATION – probate - application for grant of probate in solemn form – where will executed apparently correctly and regularly – whether deceased had testamentary capacity to make will – whether deceased had requisite testamentary intention – whether deceased had knowledge and approval of the will CIVIL PROCEDURE – litigant in person – construction of court documents where prepared by litigant in person – whether the Court should adjust the rights of the parties where litigants in person appear before it

SUCCESSION – probate – revocation of grant – grant made to two executors – failure of one executor over lengthy period to carry out duties – revocation order made

CRIMINAL LAW – application for indefinite adjournment of commencement of trial – accused without legal representation – degree of preparedness of accused to present own defence – resolution of pre-trial issues relating to admissibility of evidence – time remaining for resolution of further pre-trial issues – fairness to the accused – duty of courts to give party opportunity to present case but not to ensure that party take best advantage of that opportunity – accused not impecunious however grant of Legal Aid should not be withdrawn

CIVIL LAW – originating process not filed – no appearance on behalf of the plaintiff - matter struck out of the list

CIVIL LAW – transfer of proceedings into the Court of Appeal

CIVIL LAW – Notice of Motion seeking stay of writ of possession

CIVIL LAW – Notice of Motion - orders pursuant to s39 of the Proceeds of Crime Act 2002 (Cth)

REAL PROPERTY – possession of land – default under mortgage – defence filed containing no defence to claim – absence of defendant – leave to re-plead – no matter of principle

EQUITY – trusts and trustees – applications to court for advice – responsible entity of managed investment scheme – question involving construction of constitution of trust

REAL PROPERTY – leasehold title – breach of lease – rent due – property damage – rectification of lease – dairy herd – Bovine Johne’s Disease – Bovine Johne’s Disease regulatory regimes and application to the herd – Standard Definitions and Rules – National Diary BJD Assurance Score Scheme – whether herd achieved unassessed or higher status during term of lease – negotiation of lease – witnesses credibility – damages under clause 20.3 – other damage claims EVIDENCE – admissibility – s 69 of Evidence Act 1995 (NSW) – business records – soil tests as business records

COSTS – settlement of proceedings after conclusion of evidence – various offers of settlement – reasonableness of conduct of parties LEGAL PRACTITIONERS – Court’s expectation of legal practitioners in heated property disputes

CIVIL PROCEDURE – application by 3rd defendant to file amended defence

ESTOPPEL – consent or acquiescence – plaintiff bank funded development secured in part by first registered mortgage over development property – defendant builder entered into contract for sale of one unit in development in lieu of payment for construction works – whether bank consented or acquiesced to sale contract so as to displace priority of its security ESTOPPEL – estoppel in pais – whether bank, due to its conduct, estopped from relying on first registered mortgage to defeat contract for sale CONSUMER LAW – misleading or deceptive and unconscionable conduct – whether bank’s conduct misleading or deceptive or likely to mislead or deceive – whether bank’s conduct unconscionable

TORTS – negligence – liability of statutory authority – where authority notified of child physical and sexual abuse – whether authority owed plaintiffs a duty under the law of negligence in exercise of its statutory powers TORTS – negligence – breach of duty of care – failure of statutory authority to report child abuse to police – whether breach was a necessary condition of harm suffered by plaintiffs TORTS – negligence – liability of social worker of statutory authority – where worker received the complaint made of child physical and sexual abuse – whether worker owed plaintiffs the same duty of care as the statutory authority – in circumstances where discretion of statutory power was conferred on Director

INSURANCE – deregistered company – proceedings under s 601AG of the Corporations Act – recourse against insurer – deregistered company carried on business of finance broking – general manager promoted transaction to plaintiffs to lend funds to business clients – funds transferred to business and then supposedly lent to clients – general manager misappropriated funds – never intended to lend funds to business’s clients – s 601AG(a) – liability of deregistered company to plaintiffs – plaintiffs established liability for breach of contract and false and misleading conduct contrary to former s 52 of the Trade Practices Act 1974 (Cth) – claim in contract not subject to proportionate liability provisions of Civil Liability Act 2002 or Trade Practices Act – contributory negligence not available in respect of liability in contract – s 601AG(b) – whether insurance policy covered deregistered company’s liability to plaintiffs – plaintiffs established a civil liability for “compensation” as defined in the policy – plaintiffs failed to establish that a claim for compensation made upon deregistered company within the policy period – plaintiffs established that liability of deregistered company and claim result from the conduct of “Professional Services” as defined in the policy – defendant insurer established that liability of deregistered company was assumed outside the normal course of the “Professional Services” as defined in the policy – defendant insurer established that liability of deregistered company arose from dishonest or fraudulent acts of deregistered company within dishonesty exclusion clause – exclusion clause not exempted because of acts of “employee” of deregistered company – general manager not employee but acted as part owner. HELD: Liability of deregistered company to plaintiffs not “covered” by policy – proceedings dismissed.

CRIMINAL LAW – appeal against sentence – Muldrock error – error in using finding of special circumstances to increase head sentence – error in imposing fixed sentence for offence with standard non-parole period – whether error in sentencing judge’s treatment of psychiatric evidence not considered as other grounds of appeal established APPEAL – extension of time granted as error disclosed and as in interests of justice – consideration of operation of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal granted as error not immaterial – court of appeal to re-exercise the sentencing discretion afresh – CRIMINAL LAW – SENTENCING – objective circumstances of offending were serious – subjective circumstances of appellant lessen need for specific and general deterrence – appellant’s social exclusion from Aboriginal culture contributed to his offending– sentence reduced to 7 years and 4 months non parole with the balance of term being 4 years

TORTS – negligence – breach of duty of care – respondent suffered catastrophic injuries when he crashed his motorcycle on a median strip – whether the installation of a “Keep Left” sign at the recommencement of a median strip after an intersection was required by the relevant Australian Standard – whether the appellant’s failure to install such a sign was a breach of its duty of care to road users such as the respondent motorcyclist TORTS – negligence – causation – whether, had a “Keep Left” sign been installed, the respondent’s motorcycle would not have come into contact with the nose of the median strip TORTS – negligence – public and other authorities – whether the appellant was immune from statutory liability in the exercise of a special statutory power – Civil Liability Act 2002 (NSW), s 43A

PROCEDURE – judgments and orders – second application for leave under s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) – whether that application was an abuse of process – whether the trial judge erred in failing to consider whether the applicant had provided a full and satisfactory explanation for the delay in commencing proceedings PROCEDURE – conduct of proceedings – party bound by the way in which his or her counsel conducts a trial – jurisdiction to interfere in the case of inadvertence or incompetence on the part of an advocate

COSTS – Offer of Compromise – compliance with Uniform Civil Procedure Rules, r 20.26 (as in force in November 2012) – whether Offer sufficiently indicated that it was inclusive of “interim payments” made under ss 83 and 84A of the Motor Accidents Compensation Act 1999 (NSW) COSTS – Calderbank Letter – whether a genuine offer of compromise – whether pre-trial Calderbank offer justified departure from the general rule that appeal costs are primarily determined by the issues in and outcomes of the appeal

COSTS - costs orders against children – costs orders against tutors COSTS – costs orders against joined parties - where successful party unsuccessfully opposed joinder application – where joined party did not seek costs against successful party in earlier proceedings COSTS – analogy between principle that where testator has caused problem, estate should bear the costs and cases where party reasonably raises issue relating to affairs of testator for investigation

ADMINISTRATIVE LAW – Civil and Administrative Tribunal (NSW) – leave to appeal on a question of law – residential tenancy – Housing Act 2001 – cancellation of rental rebates retrospectively – whether tenancy able to be terminated on basis of non-payment of past rebates – whether grant of rental rebates amounted to variations in the residential tenancy agreement – effect of s 57 Housing Act 2001 – appeal dismissed

NEGLIGENCE – professional negligence – lawyers – duties and liabilities – advocate’s immunity – settlement of proceedings – whether alleged failure to advise in relation to settlement offer was a decision affecting the conduct of the case in Court – test in D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 applied – leave granted – appeal dismissed

CRIMINAL LAW – admissibility of coincidence evidence in s 98 of the Evidence Act – whether leave should be granted under s 192 on Crown’s failure to give reasonable notice

PROCEDURE – costs – where proceedings settled – where plaintiff obtains substantial success by settlement – where not unreasonable for proceedings to be commenced for resolution of dispute – where requirement to come to Court not caused by defendant – held, parties to bear own costs.

CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand – defect in demand – where demand fails to specify Court, judgment and judgment date with respect to judgment debt demanded – requirement that substantial injustice will be caused unless demand set aside – whether separate applications to set aside statutory demands must be made with respect to separate statutory demands – where appeal from judgment pending – whether pendency of appeal provides “some other reason” to set aside demand – relevant circumstances surrounding pendency of appeal which influence Court’s discretion

PROCEEDS OF CRIME – no question of principle

PROCEEDS OF CRIME – no question of principle

PROCEEDS OF CRIME – no question of principle

CRIMINAL LAW – sentencing – assault occasioning actual bodily harm – serious example of offence – alcohol fuelled violence – no question of principle