Cases and authorities

PRACTICE AND PROCEDURE – apprehension of bias – whether by reason of terms of judgment dismissing plaintiff’s claim or of a remark made during subsequent submissions a fair minded lay observer might think the judge might not bring an impartial and unprejudiced mind to bear on the question of costs of the proceedings – whether judge should recuse himself

PROCEDURE – civil – judgments and orders – approval of settlement under s 76 Civil Procedure Act 2005

PROCEDURE – civil – whether plaintiff can revoke election made to accept permanent loss compensation – whether the plaintiff is entitled to commence common law proceedings outside the limitation period

PROCEDURE – civil – transfer of proceedings

Costs – motions by third-party recipient of orders for production under s 68 of the Civil Procedure Act 2005 (NSW) in aid of liquidator’s examination under Part 5.9 of that Act to set aside the orders – substitute order for production made by the Court after a practical consideration of the categories of documents required by the liquidator – both parties share some responsibility for excessive correspondence and delay in bringing the issue before the Court – parties to bear their own costs of the notices of motion

FREEZING ORDERS – application for interim preservation orders in support of claim over funds – where judgment debtor had filed a debtors petition and become bankrupt – where judgment debtor had caused funds to be transferred to respondent company controlled by judgment debtor – where respondent company's funds appear to have been used for personal expenditure of judgment debtor – company exercising a power of disposition over judgment debtor's assets – whether existing orders should be continued – whether subject funds should be paid into court.

WILL CONSTRUCTED – applications for rectification of wills dismissed – other applications dismissed

CORPORATIONS – meetings – two-thirds of members to approved sale – two-thirds of those present and voting required

CORPORATIONS – claim by plaintiff company for compensation under Corporations Act 2001 (Cth), s 1317H against company secretary and directors of plaintiff for contravention of ss 180, 181 and 182 or equitable duties owed to plaintiff by defendant company officers – where defendants caused payment to be made by plaintiff to company engaged to provide consultancy services of which two defendants were directors – whether resolution made by three of four directors at a meeting authorising the payment valid in circumstances where one director was absent and not given notice of meeting – where plaintiff already obliged under contract to make payment to consultancy company and thus did not adequately prove it suffered any loss

CRIMINAL LAW – application for leave to appeal against sentence – child sexual offences – whether applicant’s good character assisted him in commission of offences – Crimes (Sentencing Procedure) Act, s 21A(5A) – whether lesser sentence warranted

CRIMINAL LAW – sentencing – armed robbery – multiple offences – concurrency and accumulation – whether by the accumulation of sentences the sentencing judge overstated the total criminality – discretionary exercise – no error shown

Criminal law sentencing – totality – sentencing practice at time of offending

CRIMINAL LAW – conviction appeal – armed robbery – joint criminal enterprise – whether jury’s verdict unreasonable – whether statements by accomplice who was unavailable were properly admitted EVIDENCE – hearsay rule – accomplice – made admissions against interest in police interview – accomplice not available – whether interview made in circumstances that made it likely the representation was reliable – Evidence Act 1995 (NSW), s 65(2)(d)(ii)

CORPORATIONS – administration – application by administrator for adjournment of creditors’ meeting beyond period permitted under (Cth) Corporations Act 2001, s 439B(2) – application for further extension to facilitate sale of business – effect of further adjournment on creditors – where adjournment will preserve only opportunity for significant benefit to creditors – where prejudice of adjournment appears inconsequential – held, adjournment granted.

PROCEDURE – civil – parties – representation – referral to a barrister or solicitor

SUMMARY JUDGMENT – loan account of company associated with ex-director – reliability of accounts – Limitation Act 1969 – whether cause of action confirmed – summary judgment refused.

PROCEDURE – civil – interim preservation order under r 25.3 UCPR that machinery belonging to plaintiff is not to be removed or dismantled from the defendant’s premises – length of the order sought to ensure fairness to parties

APPEAL – forensic procedure order of Local Court – question of law – whether the Magistrate erred in failing to have regard to the test set out in s 24(1)(b) Crimes (Forensic Procedures) Act 2000

JUDGMENT ENFORCEMENT – application for summary judgment by the plaintiff – no appearance by defendants – first defendant a foreign company – matters to be considered when granting leave to proceed – Uniform Civil Procedure Rules (NSW) 11.4(1)

CRIMINAL LAW – appeal – application under Pt 7 Div 3 Crimes (Appeal and Review) Act – whether sentencing principles properly applied - s 6(3) Criminal Appeal Act – no error in independent exercise of sentencing discretion – application dismissed

PRACTICE AND PROCEDURE – application to set aside notice to produce – privilege – legal professional privilege – waiver – implied waiver – conduct – whether conduct inconsistent with maintenance of privilege

TORTS – negligence – liability for two separate work related injuries – fall from elevated platform at first defendant’s premises and unrelated motor vehicle accident – whether plaintiff’s supervisory staff were employed by the plaintiff’s employer or the first defendant TORTS – negligence – breach of duty of care by employer and first defendant – whether plaintiff is guilty of contributory negligence – issues of apportionment and contribution between first and second defendant DAMAGES – torts – negligence – workers compensation – application of indemnity under s 151Z(1)(d) Workers Compensation Act 1987 (NSW) where plaintiff has suffered two injuries – application of the general law and principle against double compensation EVIDENCE – witnesses – credibility and reliability of plaintiff’s evidence on nature and extent of symptoms and disability – impact of plaintiff’s ongoing psychiatric illness

REAL PROPERTY - Torrens title - possession of land pursuant to registered mortgage CONTRACTS - general contractual principles - harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 (NSW) - low-doc and no-doc loans - whether loan agreement was unjust in all the circumstances at the time of entry into the agreement - whether lender required to ascertain suitability of loan to borrower - whether lender had constructive knowledge of borrower’s personal and financial circumstances through a mortgage broker TORTS - negligence - whether lender under duty of care to prudently assess whether borrower had reasonable prospects of adequately servicing proposed loan - no duty found to exist

Family law and child welfare – Child welfare under State legislation – Challenge in Supreme Court to proceedings pending in Children’s Court – Costs – Principles Practice – Costs – Jurisdiction – Care proceedings – Challenge to proceedings in Children’s Court - Principles

CRIMINAL LAW – Appeal and Review – Evidence - Where plaintiff charged with stealing from the person following altercation with an off duty police officer – Where off duty police officer then purported to arrest the plaintiff – Proceedings before the Local Court where plaintiff argued that evidence should be excluded pursuant to s. 138 of the Evidence Act 1995 – Where Magistrate admitted the evidence – Whether Magistrate erred in doing so – Whether Magistrate erred in not ordering a permanent stay of proceedings on the grounds of an abuse of process

SUCCESSION – FAMILY PROVISION – Plaintiff makes a claim for a family provision order – No dispute as to the Plaintiff’s eligibility as a child of the deceased – Defendant, also a child of the deceased and the sole executor and beneficiary named in the Will – Allegations of misconduct made by the deceased in signed document – Whether allegations made by the deceased should be found to be true – Not so found – No competing financial claim advanced by the Defendant – Whether family provision order should be made, and if so, the nature and quantum of the further provision to be made

CONTRACTS – Guarantees – whether guarantee subject to a liability cap a guarantee of part – whether guarantor has rights of subrogation before lender fully paid

EQUITY – Fiduciary duty – Barnes v Addy case of alleged knowing of receipt – fails on facts

COSTS – application for gross costs order under the Civil Procedure Act 2005 (NSW), s 98(4)(c) – late service of supporting affidavit – whether appropriate to make order PROCEDURE – amended statement of claim struck out – failure to identify a cause of action – whether appropriate to dismiss proceeding – effect of dismissing proceeding – Civil Procedure Act 2005 (NSW), s 91, Uniform Civil Procedure Rules 2005 (NSW), r 13.4 PROCEDURE – review of decision of a single Judge of Appeal – whether error of single judge or change in circumstances – Supreme Court Act 1970 (NSW), s 46 PROCEDURE – subpoena – application to call on subpoena before motion to dismiss proceedings – whether evidence relevant to existence of cause of action – whether validity of subpoena assessable absent pleading of cognisable cause of action

PRACTICE and PROCEDURE – application to release security – application for extension of time to present case in response – need to consider overriding purpose – Civil Procedure Act 2005 (NSW), s 56

DAMAGES – assessment – damages for past economic loss – plaintiff injured by respondent in motor accident – whether plaintiff would have stayed in Australia and been employed as a nurse absent injury – availability of child minding assistance to the plaintiff in Australia – whether trial judge erred in determining the plaintiff’s loss of earning capacity – damages for future economic loss – whether the trial judge erred in deducting more than 15% for vicissitudes – Motor Accidents Compensation Act 1999 (NSW), s 126 DAMAGES – assessment – claim for gratuitous domestic assistance – refused because plaintiff’s personal domestic needs required less than six hours per week – whether plaintiff’s lost capacity to care for other family members can be considered – whether statutory test for awarding damages requires separate assessment of claims for gratuitous domestic assistance – Civil Liability Act 2002 (NSW), s 15B – Motor Accidents Compensation Act 1999 (NSW), s 141B DAMAGES – commercial domestic assistance – whether trial judge erred in assessing likelihood of need – application of Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 in respect of future contingencies

CRIMINAL LAW – admissibility of complaint evidence

CRIMINAL LAW – application to discharge jury – counsel for defence withdrawn – new counsel – new counsel not present for witness testimony – forensic disadvantage – interests of the community – ready disposition of the matter – whether counsel’s disadvantage can be addressed

PROCEDURE – civil – interlocutory issues – directions – additional medical examination of plaintiff sought

[CHILDREN] – application for interim parental responsibility of infant – whether risk to child substantiated

BUILDING AND ENGINEERING CONTRACTS – Remedies – Claim for breach of statutory warranties – Whether claim in time – Home Building Act, 1989 ss 18B, 18E PRACTICE – Adjournment – Discretionary considerations – Extended failure to comply with directions to file evidence - No proper or adequate explanation – Adjournment to file evidence refused.

REAL PROPERTY – application for leave to file a caveat – where previous caveat filed after settlement of land transfer but before registration – application of Real Property Act 1900 (NSW), s 43A – whether injunction should be granted to protect potential personal equity claim against current registered proprietor

CIVIL PROCEDURE – application by second defendant to remove plaintiff’s tutor – where tutor is subject of an instrument appointing an enduring guardian – insufficient evidence to displace presumption as to appointor’s capacity.

ESTATE ADMINISTRATION – application for appointment as administrators of estate under Probate and Administration Act 1898 (NSW), s 74 – where deceased was the only signatory to the trust account of a continuing business – appointment necessary to preserve value of business – if appointed administrators seek to appoint directors to deceased's proprietary companies under Corporations Act 2001 (Cth), s 201F – limitation applied on conducting affairs of those companies for the preservation of estate assets.

COSTS – whether costs on plaintiff’s successful claim for compensation under Real Property Act 1900 (NSW) s 74 be paid by defendant on an indemnity basis – defendant had no arguable claim for an estate or interest in the property for the lodgement of a caveat preventing sale of property – defendant ordered in separate removal of caveat proceedings to pay plaintiff’s costs on an indemnity basis – defendant’s unreasonable rejection of a Calderbank offer

COSTS – consideration of appropriate order for costs on a successful motion by the plaintiff for an order under UCPR r 28.2 that the issue of damages be heard separately from and subsequently to the balance of the issues in the proceedings

CRIMINAL LAW – sentence – murder – mental illness – objective circumstances - subjective circumstances

INJUNCTIONS – interlocutory injunctions – university student who failed two successive years seeks judicial review – student unsuccessful in internal and external appeals under University Regulations – some outstanding appeals - injunction sought to enable student to progress to third year of study – medical degree – third year involving clinical placements – rights under Regulations and Appeals Policy whilst appeals pending – whether those rights extend to judicial review proceedings – whether student shows serious question to be tried – where balance of convenience lies – injunction refused

CRIMINAL LAW – appeal – s 5F(3) Criminal Appeal Act 1912 – whether leave ought to be granted – appeal against decision to admit certain evidence as tendency evidence – where sexual assault offences alleged in respect of multiple complainants – where evidence significantly probative – whether risk of circular reasoning – importance of considering jury directions in assessing prejudicial effect – no error established – leave to appeal refused CRIMINAL LAW – appeal – s 5F(3) Criminal Appeal Act 1912 – whether leave ought to be granted – appeal against decision to order joint trials – where tendency evidence held to be admissible – leave to appeal refused

CRIMINAL LAW – sentencing – supply of prohibited drugs – co-offenders – parity – prior application for leave to appeal against sentence refused – successful appeal by co-offender – fresh application by applicant to appeal against sentence on parity ground – whether Court of Criminal Appeal has jurisdiction – order on first appeal was that leave to appeal be refused – order distinguished from order that appeal be dismissed –– proper construction of Criminal Appeal Act 1912 (NSW) - court has jurisdiction to hear second application for leave

CRIMINAL LAW – sentencing – supply of prohibited drugs – two offences - whether applicant involved in trafficking to a substantial degree – decision based not solely on quantity of drugs but other indicia of supply – whether decision open to sentencing judge – whether sentence manifestly excessive – no exceptional circumstances where finding of trafficking to a substantial degree - sentences entirely concurrent – appeal dismissed

CRIMINAL LAW – conviction appeal – robbery – Crimes Act 1900 (NSW), s 97 – joint criminal enterprise – whether primary judge erred in direction on joint criminal enterprise – ‘participation’ required of member of joint enterprise present but not actively involved in the commission of agreed crime – whether jury ought to be directed that ‘participation’ requires more than proof that the accused was a party to an agreement and was present when agreed crime was committed

TORTS – no question of principle – no grounds to disturb trial judge’s findings on credit

REAL PROPERTY – Torrens title – easements – whether right over land is capable of being the subject matter of a grant of easement – whether right to jointly use car park interferes with ownership rights of servient tenement holder to the extent that the validity of the easement is denied REAL PROPERTY – Torrens title – exceptions to indefeasibility under s 42(1)(1a) – whether easement “validly created” under the Real Property Act 1900 - where easement never recorded on the certificate of title of the servient tenement – whether easement omitted