Cases and authorities

EVIDENCE – Affidavit evidence – Further application for cross-examination by audio-visual link – UCPR Pt 31 r 31.3

POLICE INVESTIGATION – artwork stolen and then recovered – seized by police but no longer required – insurer who paid claim for seized items seeks delivery of items to it – application not opposed – onus on insurer to demonstrate entitlement – no question of principle.

PRACTICE AND PROCEDURE – Amendment of statement of claim – Where amendments sought consistent with existing pleadings and expert evidence – amendments allowed

PRACTICE AND PROCEDURE – Application to set aside default judgment – No proper explanation for delay – Bona fide defence not made out – Application dismissed – No point of principle

CRIMINAL LAW – applicant “glassed” victim in beer garden of hotel when intoxicated – application for leave to appeal against sentence for wounding with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 (NSW) – whether emotional harm suffered by the victim was established as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – use to which victim impact statements can be put – causal nexus between offender’s mental illness and offending behaviour – weight to be placed on general deterrence in sentencing – consideration of mental condition in sentencing depends on the circumstances – offender’s mental condition the beginning not the end of the relevant inquiry

CRIMINAL LAW – leave to appeal against sentence – mental illness – special circumstances – manifest excess – appeal dismissed

PROCEDURE – costs – whether the second respondent should be ordered to pay the costs of the successful appellant of the appeal, in circumstances where the second respondent was found not to be liable for the first respondent’s injuries – whether the fact that the second respondent had sought to support the primary judge’s findings on several issues should result in costs not following the event – Uniform Civil Procedure Rules 2005 (NSW), r 42.1

TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – consumer protection – misleading or deceptive conduct – negotiation and formation of franchise agreements under which franchisees operate branches as agents of a bank – statements made by the bank as to volumes of future business – whether these were statements as to what franchisees will likely achieve or statements regarding hypothetical possibility – silence – bank did not volunteer information regarding business volumes achieved by existing franchisees – whether maintaining of silence on that matter was misleading or deceptive conduct

PROCEDURE – application for leave to rely on affidavit evidence – where affidavit served after the date for filing evidence in chief – whether affidavit evidence will cause prejudice to the Defendants – whether to allow the affidavit evidence to be read.

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application for order convening meeting of members to consider scheme of arrangement – whether scheme sufficiently explained and whether any obvious flaw – where no commercial reason why scheme could not be approved – where explanatory statement involves comprehensive disclosure of requisite matters – where notification given to ASIC. TRUSTS – trustees – trustees’ applications – judicial advice – managed investment scheme – proposal to amend trust deed in conjunction with corporate scheme of arrangement – whether trustee justified in making constitutional amendment to enable scheme.

PRACTICE AND PROCEDURE – Application to vacate hearing date based upon asserted need for expert report – Where orders previously made for the filing of evidence – Where such orders extended – Where no indication given that any further expert report was being contemplated – Application to vacate the hearing date refused

COSTS – UCPR 42.1 - general rule that costs follow the event - s 98 Civil Procedure Act 2005 (NSW) - court’s discretion to determine by whom, to whom and to what extent costs are to be paid

CRIMINAL LAW – EVIDENCE – privilege against self-incrimination - objection by witness who was previously charged as an accessory – finality of decision by DPP to discontinue proceedings – decision not final – application of High Court decision in X7 v Australian Crime Commission to s 128 Evidence Act – whether in the interests of justice to require witness to give evidence – relevant considerations – protection afforded by certificate – potential of ruling to fundamentally alter accusatorial process – no pending criminal proceedings – reasonable grounds for objection but witness required to give evidence – certificate granted

CIVIL LAW – applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – test to be applied – application for preparation of mandatory expert reports – whether interim detention order or interim supervision order should be made

INSURANCE – contracts or policies – damage to commercial project due to flooding – interpretation of the meaning of “Insured” under the insurance policy –– whether the plaintiff as owner of the land comes under the extended definition of “Insured” and therefore is an un-named insured under the policy INSURANCE – contracts or policies – commercial purpose or object of insurance policy – where the parties involved in the project are part of a corporate family tree – whether the plaintiff is associated or affiliated with the named “Insured”

NEGLIGENCE – employee/employer – mining industry – plaintiff injured in workplace accident – suffered spinal injury – liability admitted during hearing DAMAGES – quantum – calculation of future loss of earnings – plaintiff underwent multiple spinal surgeries – specialist medical evidence strongly supported the claim for past and future impairment of earning capacity on a total incapacity basis – likely that the plaintiff would have continued in employment in the mining industry beyond 65 years. DAMAGES – quantum – economic loss assessed on a total incapacity basis -whether award of damages for past care should be reduced because of carer payments received by plaintiff’s wife under the Social Security Act 1991 (Cth) –award of damages for past care reduced according to amount of weekly carer payments received – the award of damages for future domestic care is founded on a different basis under the Social Security Act than is the basis for a “carer payment” which is the provision of personal services by the care provider to a care recipient.

APPEAL – negligence – judgement for defendant at trial – whether appellant ran a new case on appeal – whether the pleadings encompassed the case put on appeal DAMAGES – non-economic loss - whether the proportion of a most extreme case was manifestly inadequate – whether the trial judge made an error justifying the interference with the assessment DAMAGES – economic loss – injury suffered by the appellant aggravated earlier condition in wrist – appellant’s work pattern as chef was fluctuating due to the nature of the industry – the appellant returned to work three months after the injury – whether the trial judge erred in finding that the appellant suffered no past financial loss after that period – future economic loss – whether no diminution of earning capacity in the future but for the period when the appellant will undergo wrist operation – whether precise calculation possible DAMAGES – domestic assistance at commercial rates – appellant unable to perform tasks requiring pressure with both hands – whether error in finding of no need but preference for assistance at commercial rates – Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 applied EVIDENCE – admissibility and relevance – expert opinion – expert conceded lack of expertise in specific field – report admitted “provisionally” – whether the report rejected and then improperly relied on by the trial judge NEGLIGENCE – breach of duty – rescuer injured – respondent provided an enclosed playground area at its premises – respondent knew that playing in the back area of the playground was dangerous and that children used to go there – a small child entered the back area of the playground and got stuck on the equipment – entrance to the area was through a gate which had no warning on it nor a secure lock – appellant fell after rescuing the child – whether respondent breached duty of care by failing to provide a system preventing unauthorised access by children to the back area

[APPEAL] – where issue as to whether agreement for sale of half share in business was reached – whether primary judge erred in finding that there was no agreement – whether primary judge erred in failing to make findings of fact necessary for determining whether a contract had been concluded – where conclusions reached on claim and cross-claim irreconcilable

ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – unsuccessful application for leave to apply to rescind care orders – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly applied provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in approach to assessing applicant’s case – allegation of denial of procedural fairness ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child CHILD WELFARE – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant’s evidence

ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – judicial review – appeal from Children’s Court to District Court – application to Court of Appeal for relief pursuant to s 69, Supreme Court Act 1970 (NSW) – whether error of law on the face of the record or jurisdictional error established – whether District Court correctly construed and applied provisions of the Children and Young Persons (Care and Protection) Act 1998 – s 106A ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – procedural fairness – apprehended bias – allegation judge biased in assessing applicant’s case – allegation of excessive intervention by judge in examination of witnesses by litigant in person ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – whether judge placed excessive or too little weight on applicant’s evidence ADMINISTRATIVE LAW – child welfare – care and protection of children – care and protection orders – international treaty obligations – relevance to exercise of discretion – United Nations Convention on the Rights of the Child CHILD WELFARE – care and protection of children – care and protection orders – challenge to Children’s Court order placing child under parental responsibility of Minister until aged 18 years of age

COSTS – where statutory demand set aside by consent of parties – where reasonable costs incurred by plaintiff – held, plaintiff to pay defendant’s costs as assessed.

CORPORATIONS – deregistration – reinstatement of registration for purpose of winding up – winding up on just and equitable ground – where no directors acting and no likelihood of directors being appointed. PROCEDURE – service – failure to comply with (CTH) Service and Execution of Process Act 1992 – where service required upon deregistered company – held, failure of effective service not a bar to matter proceeding. CORPORATIONS – reinstatement of registration – suspension of limitation period on actions against company – whether (CTH) Corporations Act 2001, s 601AH(3)(d), confers jurisdiction to suspend limitation period – discretion to make order – whether deregistration practically precluded plaintiff from instituting proceedings.

CORPORATIONS – creditor’s statutory demand – application to cross-examine officer of plaintiff – where cross-examination is the exception rather than the rule – whether defendant entitled to cross-examine the plaintiff to contend that the dispute or offsetting claim is an invention or fictitious.

MENTAL HEALTH – habeas corpus application -- operation of Guardianship Act 1987 and Mental Health Act 2007 -- whether applicant voluntarily admitted to a mental health facility under Mental Health Act 2007 can be detained within that facility against her will – where Mental Health Review Tribunal had ordered the discharge of person – whether Public Guardian's decision could displace plaintiff's decision regarding her accommodation – whether Public Guardian submitted valid Mental Health Act s 7(1) request for the plaintiff to be voluntarily admitted into a mental health facility --applicant released. WORDS AND PHRASES -- "admitted to a mental health facility"

EVIDENCE – Affidavit evidence – Cross-examination by audio-visual link – Leave to rely on affidavit where deponent could not attend for examination – UCPR Pt 31 r 31.3; Pt 35 r 35.2(3)

LEGAL PRACTITIONER – costs – where plaintiff ordered to pay defendants’ costs – plaintiff’s solicitor’s costs of the costs application disallowed as between the solicitor and plaintiff – plaintiff’s solicitor ordered to pay to the plaintiff 90 per cent of the costs of the costs application that she is ordered to pay the defendants

PRACTICE AND PROCEDURE – Where plaintiff brought proceedings appealing against a decision of the NSW Civil and Administrative Tribunal – Where defendant brought a Notice of Motion seeking that the proceedings be transferred to the Local Court – No power to transfer proceedings – Notice of Motion dismissed

CRIMINAL LAW – appeal – appeal against sentence – two counts of robbery in company – stealing in a dwelling – dishonestly obtaining property by deception – whether legitimate sense of grievance arising from a comparison of sentence imposed upon co-offender – whether error in failing to take into account other periods of custody served – where applicant seeks to argue different case to that run below – no errors established - no lesser sentence warranted – no merit to appeal – leave refused CRIMINAL LAW – appeal – appeal against sentence – remain in building with intent to commit larceny – whether legitimate sense of grievance arising from comparison of sentence imposed upon co-offender – whether sentence manifestly excessive - no merit to appeal – leave refused

CRIMINAL LAW – application for leave to appeal against sentence for wounding with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 (NSW) – evidence by applicant that he was shot at with air rifle – sentencing judge not obliged to accept applicant’s evidence – infelicitous and gratuitous observation by sentencing judge did not, on fair reading of remarks on sentence, reveal error in approach to relevance of decisions of Court of Criminal Appeal – no error demonstrated in taking into account general deterrence when applicant has established mental illness – depends on facts and circumstances – no manifest excess demonstrated PRACTICE AND PROCEDURE – importance of identifying facts that are agreed for the purposes of sentencing and distinguishing them from facts in respect of which there is a dispute to be resolved by evidence adduced at the sentence hearing

ADMINISTRATIVE LAW – judicial review – application for review of decisions of the District Court in its criminal jurisdiction on appeal from the Local Court – challenge to decisions at two levels – review limited to jurisdictional error on part of the District Court – whether the accused was not afforded procedural fairness – complaint of inadequate representation – complaint regarding refusal to allow fresh evidence pursuant to Crimes (Appeal and Review) Act 2001 (NSW) – whether apprehended bias on the part of the magistrate in the Local Court in the form of pre-judgment – apprehended bias not established ADMINISTRATIVE LAW – judicial review - whether court attendance notice (CAN) and any conviction invalid – where date of offence particularised in CAN is amended – CAN not invalid – complaint that prosecution failed to call a material witness – complaint that District Court was not in a position to assess the accused’s credibility – complaint of inadequate reasons – summons dismissed

COSTS – costs of appeal – general rule that costs follow the event – whether reason shown to depart from the general rule – where multiple issues and more than one event – whether appellants should be deprived of part of their costs – where appellants not successful on all issues COSTS – costs of appeal – Bullock order – multiple respondents to appeal – all respondents necessarily joined – whether any basis upon which one respondent could be found responsible for the joinder of the unsuccessful respondents COSTS – costs of trial – general rule that costs follow the event – whether reason shown to depart from the general rule – where multiple issues and more than one event – where defendants successful on appeal in setting aside relief awarded against them below COSTS – costs of trial – where plaintiffs ultimately successful in some claims against one defendant – whether plaintiffs should be deprived of part of their costs COSTS – costs of trial – Bullock order – multiple defendants – whether any basis upon which unsuccessful defendant could be found responsible for the joinder of the other defendants

DEFAMATION – pleadings – rulings on imputations – capacity – requirement that imputations differ in substance

DEFAMATION – procedure – pleadings – application to compel plaintiff to plead additional remarks in matter complained of – application to strike out imputation for ambiguity – oral application for leave to interrogate the second defendant as to conversation relied upon for the first matter complained of

EQUITY – trusts and trustees – trustee seeks conferral of power, or authorisation, to vary the vesting date in respect of trust property – vesting of trust property would give rise to capital gains tax liabilities for beneficiaries – scope of inherent jurisdiction of Court to sanction deviations from the terms of trust – whether an emergency has arisen in the course of administration that needs to be resolved to preserve trust property – held, not an appropriate case for exercise of inherent power

PRIVATE INTERNATIONAL LAW – stay of proceedings; application for – exclusive jurisdiction clause – forum non conveniens CONTRACT – construction – whether clause exclusive jurisdiction clause

CRIMINAL LAW – special hearing – manslaughter – substantial impairment – limiting term.

Practice and procedure – costs – appeal against costs order – costs follow the event

JUDGMENTS AND ORDERS – orders necessary to dispose of questions left outstanding from earlier judgment – whether further sums payable – whether trustee and its directors contractually entitled to indemnity costs – whether interest to judgment should be ordered – whether either party achieved substantial success – what costs orders should be made

REAL PROPERTY – voidable transactions – transfer of property – transfer made pursuant to alleged trust agreement – intent to defraud creditors – future creditors – whether agreement made with intent to defraud creditors – whether transfer made with intent to defraud creditors – requisite state of mind – inferences to be drawn TRUSTS – existence of trust – express trust – intention to create trust – impact of subsequent conduct TRUSTS – abandonment or abrogation – conduct inconsistent with existence of trust – inferences to be drawn

CORPORATIONS – winding up – winding up in insolvency – where a company paid mortgage repayments to a financier in respect of loan by associated parties – whether uncommercial transaction under s 588FB of the Corporations Act 2001 (Cth). CORPORATIONS – winding up – winding up in insolvency – where financial records were inaccurate and required substantial further information to explain the transaction – whether the records correctly record and explain the company’s financial position – whether presumption of insolvency under s 588E(4) of the Corporations Act 2001 (Cth) – whether presumption of insolvency rebutted. CORPORATIONS — management and administration — duties and liabilities of officers of corporation — directors’ duties — claim for breach of statutory and fiduciary duties – where director failed to consider creditors – whether director had a conflict of interest or improperly used his position. EQUITY – equitable remedies – constructive trust –whether mortgage payments amounted to breach of director’s duty – whether the borrower should hold the property the subject of the mortgage on constructive trust for company. EQUITY – equitable remedies – subrogation –where payments amounted to breach of director’s duty – whether company entitled to subrogate to financier’s security.

HEALTH PRACTITIONERS – disciplinary proceedings against a psychologist – appeal – whether against a decision of the Tribunal with respect to a point of law – appeal against the exercise of a power of the Tribunal – whether error of principle established – requirement for two-stage hearing – whether practitioner denied procedural fairness

SENTENCING – manslaughter – offender arraigned on charge of murder but entered guilty plea to manslaughter – plea not accepted – found guilty of manslaughter – temporary loss of self control but otherwise not provocation – excessive self defence – assistance provided to law enforcement authorities – confession immediately after event – offender liable to be deported.

CRIMINAL LAW – appeal against sentence – whether there was failure to give appropriate weight to age and background when assessing moral culpability – whether sentence imposed was manifestly excessive – leave to appeal granted, but the appeal be dismissed

TORTS - negligence – accident boarding chairlift – chair approached with safety bar down – lift operator raised bar - duty of care - nature and scope of duty - relevant risk – breach of duty of care – causation - whether breach causative of damage suffered – materialisation of inherent risk – quantification of damages CONTRACTS – terms – implied terms – s 74(1) of the Trade Practices Act – duty to render services with “due care and skill” – breach of implied term – assessment of damages – quantification of damages – ss 4L, 68, 68B, 74(1) of the Trade Practices Act – contract for the provision of “recreational services” – effect exclusion clauses relating to more than personal injury or death – s 4L – “contravention” of the act CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) – s 74(1) of the Trade Practices Act – Part 2 of the Civil Liability Act – direct inconsistency – quantification of damages – “full contractual liability” DAMAGES – appellate review – applicable principles – diminution in work capacity – cause of diminution – calculation of rate for domestic assistance

EVIDENCE – access to documents – relevance – where relevant to parenting capacity of proposed adoptive parents. EVIDENCE – access to documents containing protected confidences under (NSW) Evidence Act 1995, s 126A – whether harm caused by disclosure of protected confidences outweighs desirability of evidence being given – where evidence bears on welfare of child the subject of proposed adoption order – where steps available to minimise harm of disclosing protected confidences – held, access to documents granted.

PROCEDURE – civil – interlocutory orders – case management – whether the plaintiff should undergo additional medical examination – directions for expert conclave COSTS – interlocutory decision – costs in the cause

WILLS, PROBATE AND ADMINISTRATION – application for judicial advice by NSW Trustee regarding distribution of estate – deceased died intestate with no spouse or issue – half of estate has been distributed to deceased’s mother –deceased’s father has recently been located – deceased’s father had little or no involvement with the deceased – deceased’s father is incapable – evidence that the deceased’s father’s attorney has told the NSW Trustee by telephone that no claim on the estate will be made – orders made: (1) fixing the time in which any application by the deceased’s father or his attorney as to the administration of the estate is to be made; (2) advising the NSW Trustee that it is entitled to distribute the remainder of the estate to the deceased’s mother if no application is made by the deceased’s father or his attorney in the time fixed, or if the NSW Trustee receives written confirmation from the deceased’s father or his attorney that no such application will be made

[CONVEYANCING] – where purchaser failed to settle by completion date – where notice to complete served –where purchaser prepared and served Transfer – vendor points out errors – purchaser amends Transfer – responsibility for execution clause in Transfer – where vendor fails to duly execute Transfer – where settlement aborted by reason of inappropriately executed Transfer – whether vendor entitled to serve notice of termination [EQUITY] – whether purchaser should be granted relief against termination of contract – whether vendor’s conduct significantly contributed to the cause of the plaintiff being in breach of the time stipulation.