Cases and authorities

PRACTICE AND PROCEDURE – appeal – application to have appeal declared incompetent pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) – whether realistic prospect of $100,000 or more being obtained on a successful appeal - application to strike out appeal declined

APPEAL – reasonable apprehension of bias – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea entered – applicant previously found not guilty by jury for another serious offence – sentencing judge expressed firm view as to applicant’s guilt in previous proceedings – application for recusal rejected – whether the judge should have recused himself for apprehended bias APPEAL – sentencing – appeal against sentence – shoot with intent to cause grievous bodily harm – guilty plea on first day of trial – conviction entered – parties proceed on the assumption of utilitarian discount on sentence – no discount awarded – whether lack of notice that no discount will be given constituted denial of procedural fairness APPEAL – sentence appeal – where sentence affected by apprehended bias – whether such decision a nullity – whether invalid order of inferior court can be subject of appeal – whether remittal or re-sentencing appropriate

CRIMINAL LAW – application for leave to appeal against sentence out of time – offence of murder – existence of “Muldrock error” conceded – extension of time should be allowed – need to re-sentence – availability of additional information to be taken into account on re-sentence – on re-sentence a lesser sentence warranted in law.

CONTRACTS – loan agreement – term of agreement provided that creditor must give 90 days’ notice to debtor before requiring repayment – whether such notice had been given PROCEDURE – pleadings – whether material facts alleged supported cause of action pleaded – compliance with Uniform Civil Procedure Rules 2005 (NSW), rr 6.12(6) and 6.12(7) PROCEDURE – judgments and orders – whether primary judge made necessary findings of fact – whether primary judge gave adequate reasons for decision

APPEAL – procedure – appellant (beneficiary and executor) challenged order in favour of estranged daughters – appellant received bulk of the estate – remaining beneficiary not joined – application for joinder on appeal – intervener’s interest under the will reduced by the provision so as to be less than the provision made to each daughter – intervener’s needs similar to those of estranged daughters – whether provision order should be varied to allow equal shares SUCCESSION – family provision – provision ordered in favour of estranged daughters – whether trial judge erred in not applying a two-step approach under the Succession Act 2006 (NSW), s 59 – whether lengthy estrangement disentitled daughters from relief – whether the conduct of the testator and the appellant relevant – whether daughters in need SUCCESSION – family provision – competing claims to estate – beneficiary relying on charitable contributions to the deceased’s estate and well-being – whether use of family name in appellant’s new business, receiving services from testator and obtaining tax deductions for contributions constituted benefits disentitling him from a moral claim on the estate

CORPORATIONS – winding up – liquidators – distribution of surplus – application for special leave to distribute surplus – special leave granted.

CORPORATIONS – receivers, controllers and managers – remuneration and expenses – where units holders of unit trust in receivership have not objected to claimed remuneration – held, amount claimed by receiver approved.

CORPORATIONS – winding up – creditor’s statutory demand – application to set aside statutory demand – where statutory demand defective – where order made setting demand aside – application to set order aside – where application to set aside statutory demand duly served on creditor at address specified in demand – held, no reason to set order aside.

PLEADING – defence struck out – defendants not conducting defence with due dispatch – no question of principle.

JUDICIAL REVIEW – whether to have application for review heard immediately on filing – matter adjourned – effect of quashing decision on review by NCAT of decision – no question of principle.

CRIMINAL LAW – DPP appeal pursuant to s5F(3A) – admissibility of evidence – exclusion of evidence in prosecution case – application and operation of s137 Evidence Act 1995 – probative value of evidence – whether use of prosecution evidence unfair to defendant – appeal by DPP upheld – evidence admissible in prosecution case.

APPEAL – application for leave to appeal – parens patriae jurisdiction of Supreme Court unsuccessfully invoked – earlier interim care order made by Children’s Court – no available statutory appeal from that order –change in circumstances since application for leave filed – final findings made by Children’s Court as to need for protection – no utility in allowing leave to appeal CHILD WELFARE – interim care order by Children’s Court – parens patriae jurisdiction of Supreme Court invoked – whether Children’s Court proper forum to determine best interests of children

CRIMINAL LAW – detention application post-conviction – Bail Act 2013 (NSW) s 50(1) – assessment of bail concerns pursuant to s 17 – unacceptable risk of non-appearance at sentence hearing

DEFAMATION – procedure – pleadings – objections to statement of claim – objections to imputations – requirements of specificity and precision

DEFAMATION – procedure – summary disposal – failure to prosecute action with due despatch – whether dictates of justice require dismissal – where plaintiff’s solicitor unable to contact plaintiff

DEFAMATION – procedure – pleadings – defences – contextual imputations – requirement of specificity – consideration of Mizikovsky v Queensland Television Ltd regarding directions to jury as to contextual truth defence

PRACTICE AND PROCEDURE – application to set originating process aside – application to strike out pleadings – where pleadings frivolous, vexatious and embarrassing – statement of claim struck out – whether leave to replead should be. PRACTICE AND PROCEUDRE – application to set aside notice to produce – where no evidence served – whether exceptional circumstances – notice to produce set aside.

PRACTICE AND PROCEDURE – judgments and orders – order entered – whether order can be set aside – whether order “beyond recall” - no question of applicability of UCPR r 36.15 or r 36.16 - whether s 73 of Civil Procedure Act 2005 available to set aside order

EASEMENTS – application to extinguish easements – where insufficient evidence provided of easements and alleged damage to found a claim in trespass – where dominant tenement forms part of an estate being administered in bankruptcy – notification of Official Trustee in Bankruptcy regarding proceedings.

GUARDIANSHIP – remuneration of financial managers – application by financial manager of a protected estate to be remunerated out of the estate pursuant to orders made in Re Managed Estates Remuneration Order –NSW Trustee and Guardian provided a report stating that, subject to the plaintiff’s insurance position being clarified, it is not aware of anything which might ground an objection to the application – held that the plaintiff is entitled to just and reasonable remuneration out of the estate, subject to conditions and with liberty to apply

CONTRACT – whether Heads of Agreement a binding and enforceable agreement by defendants to sell rural property to plaintiff – whether Heads of Agreement merely agreement to allow plaintiff access to the property to sow canola crop in anticipation of parties entering formal contract for sale – proper construction of Heads of Agreement – whether “something has gone wrong with the language” – whether reference to “Heads of Agreement” in particular clause should be construed as a reference to “Contract for Sale” – whether any relevant part performance – whether any binding and enforceable agreement should be discharged or varied by reason of defendants’ alleged misleading or deceptive conduct

CONTRACTS; INSURANCE; SUPERANNUATION – disability under superannuation scheme funded by group insurance policies – total and permanent disability definition dependent on opinion of insurer – insurers’ duty of good faith and fair dealing – whether such duty breached by failure of insurers to make decision until shortly before trial or by the decisions themselves – whether plaintiff totally and permanently disabled within meaning of the definitions in the policies

COSTS – separate trial of issue of liability – child plaintiff – extent of damage not able to be determined for some years – whether costs of liability issue should be payable forthwith.

JUDICIAL REVIEW – error of law – decisions of the Minister for Resources and Energy by his delegate to suspend mining operations pursuant to s 22(3A) of the Petroleum (Onshore) Act 1991 (NSW) – whether decisions to suspend operations were made according to law – whether certiorari should be granted

PRACTICE AND PROCEDURE – indemnity costs – Calderbank offer – whether unreasonable for offeree not to accept offer – where offer made 4 days and 2 business days before commencement of hearing EVIDENCE – admissibility – evidence of communication made in the course of mediation – Civil Procedure Act 2005 (NSW) s 30(4) – whether exception set out in Evidence Act 1995 (NSW) s 131(2)(g) applies to s 30(4) of the Civil Procedure Act 2005 (NSW) – whether s 30(4) can prevent the admission of evidence by agreement between the parties or as a result of a waiver arising from the conduct of one of the parties

CONTRACT – Plaintiff injured in Thailand – hotel alleged to be negligent – whether contract with hotel made at time of reservation or check-in - foreign jurisdiction clause contained in Guest Registration form signed on check-in – whether clause incorporated into the contract PRIVATE INTERNATIONAL LAW – stay of proceedings – foreign jurisdiction clause – whether New South Wales was an inappropriate forum – considerations – whether Defendant discharged onus

PRACTICE – jurisdiction – defendants residents of New Zealand – plaintiff seeking to impugn agreement reached by defendants in New Zealand – no error shown in refusal of leave by primary judge – leave refused

CONTRACT – general contractual principles – formation – whether sufficient evidence exists to establish that the appellant and first respondent had entered into a binding agreement EVIDENCE – inferences – whether it could be inferred from certain objective facts that discussions between the appellant and first respondent had given rise to a contract

PROCEDURE – civil – summary disposal – default judgment – stay of default judgment – self-executing order resulting in default judgment – where judgment entered in factual circumstances where plaintiff misinformed as to date for compliance – where plaintiffs contentions have not been tested on the merits

CORPORATIONS – associations – control of incorporated association – where control previously disputed but now determined at special general meeting ordered by the Court – whether appropriate to make orders noting outcome of meeting CORPORATIONS – associations – where plaintiff now seeks to recoup legal expenses from funds of the association – whether appropriate for an incorporated body to expend funds on determining who controls it – effect of costs agreement entered into between plaintiff’s lawyer and association – result that plaintiffs breached their fiduciary obligations in causing association to enter into costs agreement – further result that upholding the agreement would involve plaintiff’s solicitor as an accessory to that breach of fiduciary obligation

CRIMINAL LAW - application for stay of proceedings - Dietrich principles - adjournment of application until solicitors retained and counsel instructed for retrial

REAL PROPERTY – easements – court imposed easement – easement sought over community land – no opposition from council authority – temporary easement – reasonable necessity – public interest – adequacy of compensation – efforts made to obtain easement by consent

EXTENDED SUPERVISION ORDERS– Crimes (High Risk Offenders) Act 2006 – Unacceptable risk of re-offending if not supervised – Reasonable conditions

COSTS – notice for summary judgment – whether circumstances warrant a departure from general rule that costs follow event – no question of principle.

PRACTICE AND PROCEDURE – adoption of referee's report – expert conclave – whether expert under misapprehension that agreement with other expert was required at the expense of his own views – whether in the interests of justice not to adopt referee’s report – referee not in error

APPEAL – applications for leave to appeal – interlocutory decisions – whether error warranting appellate intervention demonstrated – whether appeals doomed to fail

INSURANCE – life insurance – liability under group life insurance contract held by trustee of superannuation fund – where member of fund is an insured person under contract – where insured person must satisfy definition of ‘Total and Permanent Disablement’ which requires insurer to form an opinion as to his or her being incapacitated – where trial judge held insurer breached obligations when doing so – whether trial judge erred in not being satisfied that appellant incapacitated within that definition TRUSTS – powers of trustee – challenge to evaluative judgment – error established – whether trial judge may form opinion as to incapacity –whether consequential relief available against trustee – not necessary to decide

CORPORATIONS – winding up – application to adjourn winding up proceedings – where further adjournment sought to permit consideration of deed of company arrangement – where unlikely that deed would be approved by creditors – where viability of deed unconfirmed – where result of deed not clearly superior to liquidation – where further costs will be incurred if proceedings adjourned – held, application for adjournment dismissed; CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor’s statutory demand – presumption of insolvency – suitability of appointing administrators as liquidators.

Transfer of proceedings from District Court – plaintiff sues Commonwealth for psychological harm allegedly suffered while in immigration detention – no question of principle.

PROCEDURE – civil – application to set aside default judgment – arguable defence – where defence filed before entry of default judgment by Registrar – where defence filed put in contest plaintiff's contentions in statement of claim

COSTS – Where proceedings dismissed – Where defendant had written to plaintiff pointing out the shortcomings in his case and had invited him to discontinue the proceedings with no orders as to costs – Where plaintiff continued proceedings – Indemnity costs awarded in favour of second defendant

COMMERCIAL ARBITRATION – Commercial Arbitration Act 2010 (NSW) ss 5, 7(1) and 8(1) – arbitration agreement requiring disputes or differences arising out of or relating to the performance or breach of the agreement to be negotiated and if they cannot be resolved by negotiation the parties to confer to ascertain whether they agree that the dispute shall first be subject to an alternative dispute resolution process – further contractual provision that the agreement cannot be varied other than in writing – party A (plaintiff) brings an action in respect of a dispute with party B (first defendant) arising out of or relating to their contract or its breach but also has factually related disputes with non-parties – request by party B under s 8(1) that the parties be referred to arbitration – whether the dispute between the parties to the arbitration agreement is arising out of or relating to their agreement or its breach – CONTRACT – party A claims an oral agreement that the dispute be resolved by court action – whether such an agreement is established - CONTRACTUAL CONSTRUCTION – whether, if established, the agreement is for resolution of the dispute by an alternative dispute resolution process - EQUITY - estoppel - whether party B is estopped from denying the asserted oral agreement or has waived its right to rely on the arbitration agreement HELD - that the dispute between the parties is one arising out of or relating to the agreement or its breach - no oral agreement as alleged established - Court proceedings are not an alternative dispute resolution process - no estoppel established - no waiver established. COMMERCIAL ARBITRATION - arbitration agreement requiring parties first to negotiate any dispute then have expert determination as a condition precedent to arbitration - party A brings an action against party C (second defendant) in respect of a dispute with party C arising out of or in connection with their contract or its breach but also has factually related disputes with non- parties - party C seeks a stay of the action alternatively makes a request under s 8(1) that the parties be referred to arbitration - whether the dispute between the parties to the arbitration agreement is arising out of or in connection with their agreement or its breach - CONTRACT - whether arbitration agreement is void for uncertainty - EQUITY - whether party C has waived its right to rely on the arbitration agreement - STATUTORY CONSTRUCTION - whether the arbitration agreement is inoperative within s 8(1) for lack of fulfilment of the condition precedent. HELD: that the dispute between the parties is one arising out of or in connection with the agreement or its breach – arbitration agreement not void for uncertainty - no waiver established - negotiation is a precondition to arbitration - precondition not yet fulfilled - arbitration agreement presently inoperative - referral to arbitration refused - stay granted.

CONTRACT – formation – whether concluded agreement reached for licence of unit in retirement village – held, no binding contract made EQUITY – equitable estoppel – whether operator of retirement village precluded from denying that it is bound to proceed to licence unit in retirement village – whether reasonable for plaintiff to consider that operator was irrevocably committed to proposed transaction – held, claimed estoppel not established

PRACTICE AND PROCEDURE – Application for dismissal of proceedings – Where plaintiff undertook examinations with a view to registration as a medical practitioner – Where plaintiff repeatedly failed clinical assessment conducted by the first defendant – Proceedings brought seeking that the Court order that the plaintiff had passed the assessment and further seeking an order that the system of assessment be changed – Where orders sought would involve the Court substituting its own views for the views of appropriately qualified persons who had conducted the assessment – Where second defendant had played no part at all in the assessment process and had made no relevant decision – No reasonable cause of action disclosed against either defendant – Proceedings dismissed

CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – where primary judge found no real chance or possibility of concoction or contamination in relation to four complainants – approach to assessing probative value in s 97 Evidence Act – competing inferences may be relevant to assessment of probative value – finding of primary judge open – no error CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – whether evidence of one particular complainant is too dissimilar to the evidence of the other complainants to have significant probative value – not necessary that allegations exhibit close similarity - differences in age of complainants not significant –– no error in approach of primary judge CRIMINAL LAW – evidence – tendency evidence – where applicant indicted on multiple counts of sexual assault involving six complainants – whether error in failing to order separate trials in respect of all complainants – whether error in assessment of prejudicial effect of the evidence – no specific prejudice identified – no deviant behaviour – jury directions appropriate to deal with any prejudice – no error in approach of primary judge

CRIMINAL LAW – carnal knowledge of a person under 10 years of age – appeal against conviction – appeal allowed – whether verdict was unreasonable or insupportable having regard to the evidence – complainant’s evidence uncorroborated – inconsistent evidence – majority decision – conviction quashed and applicant acquitted

CRIMINAL LAW – Appeal – Crown appeal against inadequacy of sentence imposed for the possession of an unauthorised pistol – Where sentencing judge found that the respondent had come into possession of the firearm essentially by chance and not as a consequence of deliberately sourcing it – No evidence that the respondent possessed the firearm for any intended criminal purpose – No evidence that he was intending to use it – No evidence that he was proposing to sell it – Where sentencing judge found no evidence to support the conclusion that the offending was objectively serious or grave – Where sentencing judge found the offending fell below the mid-range of objective seriousness - Where respondent was sentenced to 2 years imprisonment to be served by way of Intensive Correction Order – Where respondent had already spent 9½ months in custody solely in respect of the same charge – Sentence not manifestly inadequate – Crown appeal dismissed.

CRIMINAL LAW – Crown appeal against inadequacy of sentence – Separate incidents of aggravated sexual assault and armed robbery – Offending discovered by DNA matching several years later – Evidence that respondent had undergone total rehabilitation from illicit drug use during the period between the offending and his arrest – Reduced need for specific deterrence - Where sentencing judge found that the respondent suffered from mental illness – Need for general deterrence moderated – Total sentence imposed one of 6 years and 10 months with a non-parole period of 3 years and 11 months – Sentence not manifestly inadequate in the circumstances – Crown appeal dismissed

PROCEDURE – civil – jurisdiction – transfer of proceedings from District Court to Supreme Court – where real chance of award of damages exceeding jurisdictional limit of District Court. PROCEDURE – civil – interlocutory issues – suppression orders – where order sought suppressing identify of plaintiffs and another child in the proceedings

CRIMINAL LAW – murder – joint criminal enterprise - evidence – answer in accused’s ERISP – accused asserts co-offender killed deceased – accused claims to have left the room as killing commenced – accused denied enquiring of deceased’s welfare at any time – inference of encouraging and assistance – whether probative value outweighed by danger of unfair prejudice