Cases and authorities

CRIMINAL LAW – accused unfit to plead - special hearing – judge alone - manslaughter – reckless infliction of grievous bodily harm – Mental Health (Forensic Provisions) Act 1990 (NSW) ss 19, 21 and 21A CRIMINAL LAW – manslaughter – unlawful and dangerous act – dangerousness test – attributes of reasonable person - accused of moderate intellectual disability – extremely poor information processing speed and impaired conceptual reasoning – accused’s level of intellectual disability attributed to reasonable person

CRIMINAL LAW – sentencing – basis of conviction for manslaughter by excessive self-defence – offender stabbed younger cousin with kitchen knife in townhouse where they lived together – events captured by CCTV cameras inside house – aggravated by use of knife – no mitigating mental condition as diagnosis of pre-existing anxiety disorder founded on offender’s unreliable evidence and histories

DEFAMATION – procedure – pleadings – objections to imputations – rulings as to the capacity of the matter complained of to convey the imputations pleaded by the plaintiff – consideration of the ordinary reasonable reader’s understanding of the discourse of gender politics

PRACTICE AND PROCEDURE – application to vary consent orders – no questions of principle

CRIMINAL LAW – murder – sentence – wife murdered by husband – no planning – sudden loss of control – brutal and sustained attack involving at least one weapon – husband a foreign national – socially isolated individual – limited English – older offender - attempted suicide after killing – whether remorseful – prior good character -Victim Impact Statements – whether should be taken -into account – whether special circumstances

PRACTICE AND PROCEDURE – amendment of statement of claim – where successive attempts made to correctly name the defendant – where amendment correctly naming the defendant made after expiration of limitation period – whether mistake or misnomer or whether plaintiff intending to sue a different party PLEADINGS – claim by plaintiff for damages for injuries sustained in a parachuting/skydiving attempt – where plaintiff sought to plead a cause of action based on warranties implied by the Trade Practices Act - where the defendant an individual as opposed to a corporation – where relevant contract provided that the governing law was that of the ACT – whether Trade Practices Act applied PLEADINGS – where plaintiff sought to plead a cause of action based on unconscionable conduct contrary to the Trade Practices Act – where relevant contract provided that the governing law was that of the ACT - whether Trade Practices Act applied PLEADINGS – where the plaintiff sought to plead a cause of action based on unconscionable conduct contrary to the Fair Trading Act (ACT) – where relevant contract providing that the governing law was that of the ACT - whether Fair Trading Act (ACT) had extra territorial operation so as to apply NEGLIGENCE – where defendant relied upon exclusion clause contained in the contract – whether clause applied

STATUTORY INTERPRETATION – “employment” – which of two meanings applied – whether words in other provision to be read into provision where not appearing – Workers Compensation Act 1987 (NSW), s 18(1) WORKERS COMPENSATION – employer liable to pay compensation – identification of insurer – employee last exposed to relevant injury when first insurer on risk – different insurer on risk when employee ceased to be employed – Workers Compensation Act 1987 (NSW), s 18(1)

DAMAGES – assessment – damages awarded on basis of injury to plaintiff’s foot and knee – causal relation between accident and knee injury rejected on appeal – reassessment of damages DAMAGES – assessment – past and future gratuitous domestic assistance – after injury plaintiff’s husband provided care and domestic assistance – damages awarded based on plaintiff’s and husband’s evidence of the level of services – whether trial judge entitled to disregard medical evidence indicating lack of need – whether past and future services satisfy statutory intensity and duration levels – whether assessment may be made by averaging hours over a period of many weeks – Civil Liability Act 2002 (NSW), s 15B DAMAGES – assessment – domestic assistance at commercial rates – whether trial judge erred in finding that plaintiff’s husband was “unlikely” to continue providing services – whether additional duties placed “strain” on marriage NEGLIGENCE – causation – plaintiff broke a bone in her right foot as a result of a fall – whether pain in left knee reported 6 months after the accident causally related to accident – whether medical evidence supported finding of causal link in relation to the knee injury – whether injury occurred during gym session

PRACTICE AND PROCEDURE – proposed application for special leave to appeal – moneys ordered to be paid into court as security by respondents to proposed appeal – payment out on failure of purpose when no application made PRACTICE AND PROCEDURE – moneys paid into court on condition – condition in lieu of undertaking as to damages – failure of purpose – application to vary conditions – procedural unfairness when conditions set – factual premise challenged – delay in making application for variation

COSTS – appeal costs - where beneficiary filed submitting appearance but executor actively sought to uphold primary judge’s construction of will – whether executor limited to costs as submitting party - where residuary estate partially distributed – part of estate from which costs to be paid SUCCESSION – appeal - wills – construction of will – whether ‘children’ included step-children or only natural child – whether subsequent will of beneficiary relevant in construction WORDS AND PHRASES – one such of her children as shall survive me

EVIDENCE – privilege – waiver – legal professional privilege – whether privilege waived – where notice given to defendant of application for access to privileged documents – where defendant fails to appear to oppose application.

DEFAMATION – pleadings – defences – contextual truth defence – whether defendant permitted to "plead back" imputations pleaded by plaintiff as contextual imputations – Defamation Act 2005 (NSW) s 26 – application of Besser v Kermode – discussion of decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd

COSTS – general rule that costs follow the event

COSTS – assessment – non-associated third party payer – whether application made out of time – where written request for information pursuant to s 350(6) of the Legal Profession Act not complied with

ADMINISTRATIVE LAW – judicial review – workers compensation – decision of Medical Appeal Panel – whether infected by jurisdictional error – whether Panel misdirected itself – whether error of law ADMINISTRATIVE LAW – judicial review – workers compensation – decision of Medical Appeal Panel – whether ‘no evidence’ to support decision – statutory interpretation – s 323 Workplace Injury Management and Works Compensation Act 1998 (NSW) – statutory requirement of “due to” WORKERS COMPENSATION – s 323 Workplace Injury Management and Works Compensation Act 1998 (NSW) – whether pre-existing condition requires a rateable impairment WORDS & PHRASES – “due to” PRACTICE & PROCEDURE – correct constitution of proceedings for judicial review

CRIMINAL LAW – Appeal from Local Court – Whether appeal is an appeal from an “interlocutory order or judgment” within s 53(3)(b) Crimes (Appeal and Review) Act – Decision of Magistrate to allow prosecution to re-open their case and adduce further evidence after close of defence case and judgment reserved – Appellant had been charged with handling proceeds of crimes – No DNA evidence adduced by Crown at trial – Crown sought to adduce DNA evidence after close of trial – Whether decision of Magistrate to permit the prosecution case to be re-opened was an “interlocutory judgment or order” – Whether jurisdiction to hear proceedings brought under s 53(3)(b) Crimes (Appeal and Review) Act – Held: that decision was not an interlocutory order – Held that there was no right to appeal to Supreme Court from the Magistrate’s decision under s 53(3)(b) – Whether, in any event, the Magistrate’s decision involved a question of law alone or a question of mixed fact and law – Whether the Magistrate applied incorrect legal principles in allowing the application by the prosecution to re-open – Consideration of general principle that the Crown cannot ‘split’ its case – Whether exceptional circumstances existed – Whether the calling of the DNA evidence sought to be adduced was reasonably foreseeable – Held: that even if Supreme Court had jurisdiction no error established - Magistrate had correctly applied relevant principles in granting leave to the prosecutor to re-open its case.

CRIMINAL LAW – sentence – murder – nature and seriousness of the offence – moral culpability – aggravating factors – mitigating factors – personal circumstances – victim impact statements – sentence imposed

COSTS – Where proceedings dismissed – Where Defendants made Calderbank Offer when only one Plaintiff and then, prior to the final hearing, made a “walk away” offer by way of Offer of Compromise addressed to both Plaintiffs – Where first Plaintiff continued part of proceedings and where second Plaintiff joined as party and continued those proceedings – Whether first Plaintiff acted unreasonably in rejecting Calderbank Offer – Whether Offer of Compromise valid – Said not to be genuine compromise – If a genuine compromise, whether court should “otherwise order”

CONTRACT – interpretation – obligation to pay “interest “ on “Secured Money” - consideration of what constitutes interest – whether difference between subscription and redemption values of promissory notes issued by the plaintiff is “interest” under a related contract – “Secured Money” included money owing but not yet payable - held that, despite the strict literal meaning of the clause, the surrounding circumstances made it clear that the difference between subscription and redemption values of the notes was “interest” on “Secured Money” under the contract and no further interest was payable under the contract CONTRACT – interpretation – contract provided that defendant company may appoint persons to investigate affairs of plaintiff if the defendant “considers that an Event of Default has occurred” – defendant served series of invalid notices alleging defaults – defendant seeking to trigger entitlement to enforce security before date for redemption of notes – defendant’s director not called - whether service of notice and email sent from defendant’s solicitors was sufficient evidence that the defendant considered that an Event of Default had occurred – held that the defendant had not established that it considered that an Event of Default had occurred EQUITY – rectification – where plaintiff succeeded on its contractual interpretation argument as to interest – held that contract should also be rectified for abundant caution by inserting a new clause MORTGAGES – contractual entitlement to costs in redemption suit – circumstances where an unsuccessful mortgagee will be deprived of its contractual entitlement to costs against the mortgagor – held that the mortgagee is not entitled to its costs because it acted improperly and in bad faith by issuing multiple contractual default notices as part of a campaign to enforce security interests over the mortgagor where there was no proper basis for the issue of most of the notices and where the mortgagee knew that its interpretation of the contract in issue was contrary to the true agreement made by the parties

COSTS – determination of separate question – determination a separate event – costs to follow the event

CRIMINAL LAW – sexual intercourse without consent – appeal against convictions – whether jury verdicts unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed

CRIMINAL LAW – leave to appeal and appeal against sentence – whether justifiable sense of grievance as to the disparity of sentence imposed upon co-offender – leave to appeal granted – appeal dismissed

CRIMINAL LAW – leave to appeal and appeal against sentences – standard non-parole periods – deprived background – protective custody – whether sentence manifestly excessive – leave to appeal refused in relation to two grounds – leave to appeal granted in relation to two grounds – appeal upheld – sentences set aside – resentenced

MOTOR ACCIDENTS COMPENSATION – assessment of damages – appellant injured in motor vehicle accident – conflicting expert medical opinions - whether primary judge erred in assessing past and future economic loss - whether primary judge erred in assessing residual earning capacity – whether error in not considering inflation rate - whether primary judge failed to provided adequate reasons

CORPORATIONS – Administration – application for extension of convening period for second meeting of creditors – whether the Court should grant application to extend time for a second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth).

Proceeds of Crime – application by defendant for exclusion of property from automatic forfeiture and for extension of time in which to make the application – application made on the last day of the six month period before automatic forfeiture – property automatically forfeited – no power to make exclusion order – consideration of relevant provisions of Proceeds of Crime Act 2002 (Cth)

EQUITY - Application to the trial Judge to recuse himself on the basis of apprehension of bias - Practice in relation to recusal applications

COSTS – application by defendant to set aside orders under Vexatious Proceedings Act dismissed - defendant a bankrupt – order for defendant to pay plaintiffs’ costs in fixed sum.

APPEAL – Local Court – presiding magistrate accepted defendant’s evidence – no question of law or of mixed law and fact raised – extent of magistrate’s obligation to give reasons for primary finding of fact – obligation discharged – appeal dismissed.

COSTS – economic loss – documentary material to support plaintiff’s economic loss claim and provide historic insight into the plaintiff’s pre-injury employment as well as expert analysis of the losses allegedly sustained – plaintiff did not comply with orders to file and serve updated statement of particulars in accordance with the Uniform Civil Procedure Rules – significant delay – cost of appearances

APPEAL – Apprehended Domestic Violence Order (ADVO) - Application for extension of time to lodge an appeal - leave to appeal against the decision of the Local Court dismissing the application for ADVO – allegation of bias – merits of appeal APPEAL – Apprehended Domestic Violence Order (ADVO) - jurisdiction of Supreme Court to hear an appeal against the decision of the Local Court dismissing the application for ADVO APPEAL – Costs – Application for extension of time to lodge an appeal

CRIMINAL LAW – ADMINISTRATION OF SENTENCES - Parole – Application for direction to Parole Authority under s 155 Crimes (Administration of Sentences) Act 1999 (NSW) – Applicant had been refused parole by respondent – Applicant had been refused review of respondent’s decision – Applicant asserted reliance by State Parole Authority on ‘false, misleading or irrelevant information’ – Applicant failed to discharge onus of proving that any information before the Parole Authority was either inaccurate, erroneous or incomplete – Application dismissed

EQUITY- Seeking to have orders made ex parte set aside - Allegations of non-disclosure - Issue of requirements for an Anton Piller order - Whether report from computer forensic experts should be received in evidence on the application to set aside orders - Consideration of the significance of that report - Address for service P.O box - Connection between independent solicitor and applicant solicitor - Applicants ability to meet undertaking as to damages from assets within Australia

EVIDENCE – criminal trial – murder – unfavourable evidence – witness makes statement to police – witness unable to recall some of the events in the statement – whether making a genuine attempt to give evidence

CIVIL LAW – application for mandatory psychiatric examinations and interim supervision order pursuant to Crimes (High Risk Offenders) Act 2006 – preliminary hearing – whether defendant a "high risk violent offender" – whether test made out at preliminary stage

CORPORATIONS – Membership, rights and remedies – Derivative action – Application for grant of leave by shareholder to bring proceedings in name of company against director under Corporations Act 2001 (Cth) s 237 – Whether company will bring proceedings – Whether in the best interests of company that applicant be granted leave – Whether proposed proceedings involved serious questions to be tried.

CORPORATIONS – Winding up – Statutory demand – Application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) ss 459H and 459J – Whether there is a genuine dispute as to the existence or amount of debt – Whether an offsetting claim has been established – Whether affidavit evidence as to profit margin sufficient to support offsetting claim under s 459H(1)(b)

CONTRACTS – loans to complete construction of French-style chateau on Wallis Island and to provide working capital for the defendants’ business as antique dealers – relief claimed under Contracts Review Act 1980 (NSW) - refinance of existing mortgage and overdraft facility - loans not shown to be improvident – defendants not subject to any relevant disability or disadvantage - no unfairness or injustice demonstrated – relief not available since business loans obtained for business purposes – no breach of Banking Code of Conduct established even if contractual

BUILDING AND CONSTRUCTION – adjudication determination – jurisdictional error – whether adjudicator committed jurisdictional error due to non-existence of a jurisdictional fact – Building and Construction Industry Security of Payments Act 1999 (NSW) s 8, s 13 – whether existence of a reference date is an essential requirement for a valid payment claim under the Act and consequently for the adjudicator’s jurisdiction ADMINISTRATIVE LAW – natural justice – whether adjudicator denied natural justice to party due to failure to have due regard to submissions – content of duty to provide natural justice dependent on context – whether adjudicator determined dispute on a basis not advocated by either party

Criminal Law - murder - sentence - conviction after trial

CRIMINAL LAW – appeal – conviction – conduct of judge – whether judge was asleep at times during trial – whether conduct of trial judge distracted jury – whether conduct of trial judge resulted in a miscarriage of justice under Criminal Appeal Act 1912 (NSW) s 6(1) – whether trial judge exercised supervision and control –duty or obligation of trial counsel to raise asserted deficiencies in the conduct of the trial – sleep episodes of trial judge – interference with trial judge’s supervision and conduct of the trial not established– appeal dismissed

ADMINISTRATIVE LAW – judicial review sought by the Minister of an order made by the Land and Environment Court under UCPR r 59.9(4) requiring the Minister provide reasons for a decision – the order was made despite the Court striking out the sole ground of review of the Minister’s decision – effect of striking out a ground as an abuse of process – whether the Land and Environment Court had power to order the Minister to provide reasons – whether, assuming power, the Court’s discretion miscarried – whether the proceedings in the Land and Environment Court should have been dismissed

PROCEDURE – subpoenae – application to set aside subpoena – whether subpoena unreasonably burdens receiving party or is relevantly oppressive – where subpoena calls for production of privileged documents – whether privilege waived – held, no grounds for setting aside of subpoena.

CORPORATIONS – winding up – winding up in insolvency – winding up of co-operative under Co-Operatives National Law in same circumstances as company under (Cth) Corporations Act 2001 – where current liabilities clearly exceed current assets – where administrators appointed and do not oppose winding up – held, defendant insolvent and to be wound up.

CORPORATIONS – voluntary administration – jurisdiction and powers of court – orders modifying operation of (Cth) Corporations Act 2001, Pt 5.3A under s 447A – order to permit adjournment of second creditors’ meeting – where purpose of adjournment to enable sale of company’s business – utility of sale to shareholders and creditors – where preferable not to interfere with creditors’ right to decide upon further adjournment – risk that quorum at second creditors’ meeting will not be achieved – conferral of power on administrator to adjourn meeting in event that quorum not achieved.

CORPORATIONS – annual general meeting – ordinary resolutions – notice to members of resolutions to be considered and provision of relevant information – whether statutory requirement to provide relevant information in notice of meeting – obligation upon defendant to convene a valid meeting – Court’s power to make order extending time for valid notice.

CORPORATIONS – creditor’s statutory demand – where the debt the subject of the statutory demand was a judgment debt – where judgment debt arose by default judgment – where default judgment set aside – whether statutory demand should be set aside under s 459J(1)(b) of the Corporations Act 2001 (Cth).

PROCEDURE – declaration ought not to be made merely because the parties consent; WILLS AND ESTATES – construction of a will – words used – whether terms of the will and surrounding circumstances suggest the deceased intended to make a valid gift – the testator’s “armchair”

CIVIL PROCEDURE – strike out application under Uniform Civil Procedure Rules, r 13.4 – plaintiff made advances to corporate defendant in May 2006 pursuant to a written loan agreement – advances recorded in June 2008 agreement – proceedings for recovery of loan monies commenced in June 2014 – whether claim time barred by Limitation Act, s 14 – plaintiff loaned money pursuant to advice from now bankrupt financial advisor – evidence suggests not all loan documentation presently available –arguable that repayment arrangements may have been agreed outside the two written forms of agreement – arguable that that loan executed as a deed.

CONTEMPT OF COURT – civil contempt – beyond reasonable doubt - refusal to surrender property – clear, deliberate and contumelious breach of court orders – first and second defendant guilty of the charge of contempt