Cases and authorities

APPEAL - challenge to findings of fact - findings based on testimonial evidence and demeanour of witnesses - whether trial judge grappled with conflicting documentary evidence - whether material errors in description of evidence - whether necessary to determine why employee had given different histories CHOICE OF LAW - statutory contribution between tortfeasors - workplace accident in Perth - proceedings between employee and third party compromised in District Court of New South Wales - third party seeks statutory contribution from employer - absence of federal jurisdiction - characterisation of apportionment legislation - applicable choice of law rule for statutory claim for contribution TORTS - statutory contribution - workplace accident - challenge to equal apportionment of liability between third party and employer - relevance of employer being a company whose sole director and shareholder was the employee - relevance of Workers Compensation Act 1987 (NSW), s 151Z - relevance of compromised proceedings resulting in a judgment for the employee with the parties bearing their own costs

TORTS – negligence – workplace injury – police highway patrol – motorcade – urgent duty – single motorcycle accident – where boom gate lowered in error TORTS – negligence – proceedings brought against operator of motorway – proceedings brought against State as employer TORTS – negligence – whether motorway operator owed appellant duty of care in situation in which motorway was closed to civilian traffic and operator was acting under police directions – scope of operator’s duty to police officer on urgent duties – breach of duty TORTS – negligence – employer’s duty of care – breach of duty – where employer did not have control over technical aspects of motorway – where employer provided insufficient instructions to motorway operator TORTS – negligence – apportionment between multiple tortfeasors – correct test TORTS – negligence – contributory negligence – standard to be applied – Civil Liability Act 2002, ss 5B, 5C, 5R COSTS – where appellant substantially not successful – where cross-appellants not successful – exercise of discretion where order that costs follow the event would have similar effect to no order as to costs

TORTS – assessment of damages- motor vehicle accident - whether back injury caused by accident - assessment of economic loss – whether psychological injury resulted in diminished earning capacity - domestic assistance – whether award of a “buffer” involved error

CORPORATIONS – creditor’s statutory demand – application to set aside creditor’s statutory demand – whether genuine dispute as to the existence or amount of debt claimed – whether fees payable by plaintiff for services rendered by defendant – construction of contract for services between plaintiff and defendant – where appropriate for court finally to resolve simple questions of construction – defects in service of statutory demand – where post office box specified as address for service.

DEFAMATION – procedure – interrogatories

PRACTICE AND PROCEDURE - application for summary dismissal - whether statement of claim disclosed a reasonable cause of action - proceedings dismissed - whether plaintiffs estopped from prosecuting claims

DEFAMATION – procedure – application for dismissal per r 12.7 of UCPR – where statement of claim has not been served on second defendant – where plaintiff self-represented

APPEAL – forensic procedure on untested former offender – court may order forensic procedure – whether justified in all the circumstances – whether appeal raised question of law alone – duty to give reasons – whether reasons adequate.

CIVIL LAW – application to re-open case – plaintiff in custody – application foreshadowed before judgment read – previous application to re-open case prior to delivery of judgment – previous application granted – submissions received and considered before judgment delivered – application to re-open after judgment brought under wrong provision – treated as application under rule 36.16 UCPR – power to be used sparingly – finality of litigation – backdoor method to re-argue case – application dismissed

Claim for possession and judgment for loan debt resisted on the basis of the Contracts Review Act - former wife living with ex-husband - the defendant claimed not to have read documents which she had signed, relying on her ex-husband - history of mortgages over the property jointly owned - payment of previous lender out of the loan proceeds provided by lender

CRIMINAL LAW – murder – plea of guilty – joint criminal enterprise – aggravated robbery – constructive murder

PRACTICE & PROCEDURE – pleadings - application to strike out statement of claim – intentional torts -malicious prosecution, false imprisonment and wrongful arrest – where plaintiff also claims damages for defamation and personal injury –embarrassing pleading - no reasonable cause of action disclosed – police officers – absolute privilege – abuse of process - leave granted to file amended statement of claim

CRIMINAL LAW - sentence - murder - offender beats victim to death - both offender and victim affected by alcohol - offender and victim reside in victim’s house - victim had told offender to vacate premises - intention to inflict grievous bodily harm - early plea of guilty - finding of remorse - caution concerning prospects of rehabilitation - specific and general deterrence

PROCEDURE – notice of motion – order seeking to set aside judgment - leave sought to file amended cross-claim – delay – no explanation for delay - dispute as to matrimonial home – Family Court’s jurisdiction - leave sought refused PROCEDURE – first adjournment application – representative error – adjournment granted – second adjournment application – counsel not ready to proceed – application opposed – further adjournment refused

CRIMINAL LAW - sentence - murder - offender (23 years old) beats 76-year old victim to death - offender had defrauded victim of $30,000.00 - offender kills victim in hope that fraud will not be discovered - fraud planned but murder an impulsive response to risk of discovery of fraud - objective gravity of crime very high - intention to kill - use of weapons - early plea of guilty - assistance to authorities on unrelated matter (drug supply) - finding of remorse - caution concerning prospects of rehabilitation - specific and general deterrence

CONTRACTS - General contractual principles – Rectification for common and unilateral mistake - Whether plaintiff engaged in sharp practice CONTRACTS - Restraint of trade - Whether doctrine applies to a restraint agreed in settlement of a dispute regarding an earlier restraint - Reasonableness of restraint - Consideration of factors relevant to real estate agency business

DAMAGES – assessment of damages – intentional tort – assault during rugby union game – claim for compensation due to physical and psychiatric injury – summary judgment previously entered in favour of plaintiff – whether hearing should proceed ex parte – quantum of damages

APPEAL FROM LOCAL COURT - decision by magistrate to disallow cross-claim - parties in agreement that decision erroneous - underpayment of rent for long period - whether GST was payable - whether plaintiff waived right to, or elected not to, receive higher amount of monthly rent COSTS - costs below - costs of the appeal

CRIMINAL LAW – application for review of conviction – aggravated sexual assault – applicant caught red handed with his trousers down – fresh evidence – - whether fresh evidence undermined evidence of police officer – where fresh evidence ambiguous – other grounds previously dealt with on appeal – complainant did not give evidence at trial – ground considered and rejected on appeal in 1998 – no sense of unease or disquiet in allowing conviction to stand

CRIMINAL LAW – application under s 78 Crimes (Appeal and Review) Act 2001 – applicant convicted of sexual assault and kidnapping – multiple appeals and application for review – application substantially similar to earlier appeals – allegations of fabrication of evidence – delays in provision of material and submissions – applicant unrepresented – application dismissed

CRIMINAL LAW – application under s 78 Crimes (Appeal and Review) Act 2001 for inquiry into sentence –applicant convicted at trial of armed robbery, malicious wounding with intent to cause grievous bodily harm and murder – unsuccessful appeal to Court of Criminal Appeal against conviction – leave granted by Court of Criminal Appeal to appeal against sentence – no doubt of the way in which the applicant’s appeal against sentence was dealt with by the Court of Criminal Appeal – no basis for referral under Pt 7 Crimes (Appeal and Review) Act – application dismissed

APPEAL - sentencing - aggravated break and enter with intent to commit serious indictable offence (larceny) - parity - whether trial judge failed to give effect to parity assessment - applicant’s role in offence - offence committed whilst on conditional liberty - no error found - appeal dismissed APPEAL - sentencing - whether sentence manifestly excessive - deemed supply, Drug Misuse and Trafficking Act 1985 (NSW), s 29 - whether possession for personal use - appeal dismissed

CRIMINAL LAW - appeal against conviction - Appellant convicted of riot - Appellant asleep for parts of trial - whether trial judge erred in finding Appellant fit to be tried - relevant principles - capacity of accused to understand evidence at trial and nature and course of criminal proceedings - ameliorative steps available -legal representatives able to explain proceedings and important evidence - no error demonstrated in trial judge’s approach - appeal dismissed

BAIL – detention application – show cause offence – where respondent found guilty of serious sexual assault following jury trial – bail granted by District Court judge – failure to show cause why detention not justified – detention application granted – bail refused BAIL – correct approach to making and variation of bail decision in Pt 3 Bail Act 2013 – where offence is show cause offence – two-stage approach – show cause test and unacceptable risk test not to be conflated CRIMINAL LAW – procedure – bail – application for release detention or variation – referral from Supreme Court to Court of Appeal – no longer proper practice – s 66 Bail Act 2013 – Supreme Court to hear bail applications subsequent to District Court bail decisions

COSTS – where leave refused on grounds relied on by appellants in court below in circumstances where it was unnecessary to deal with other grounds – where matters not squarely raised before primary judge

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand – genuine dispute as to existence or amount of debt – onus of proof – where company’s knowledge of debt limited – analogy with application for summary judgment – ‘some other reason’ for setting demand aside – agreement, undertaking or estoppel – absence of evidence as to representations founding agreement, undertaking or estoppel. COSTS – where genuine dispute existed up to service of affidavit – where justifiable to contest proceedings up to service of affidavit but not after – where defendant also made unsuccessful application to adduce expert evidence – held, no order as to costs.

CRIMINAL LAW – application to discharge jury

BAIL – show cause offence, whether detention is justified – alleged importation of precursors – serious offence – assessment of strength of Crown case – false identification found on accused – strong subjective case for bail – proposal for electronic monitoring – health condition of applicant – separation from children – bail concerns – unacceptable risk of absconding – detention not shown to be unjustified – bail refused.

PROCEDURE – notice of motion – whether paragraphs of the defendant’s cross claim be struck out– whether the defendant should be ordered to answer interrogatories – whether the plaintiff’s notice to produce should be complied with

PRACTICE & PROCEDURE – application by 2nd defendant for security for costs - whether threshold test met – other discretionary considerations - quantum

STATUTORY INTERPRETATION – Anti-Discrimination Act 1977, s 49ZT – identification of the audience to a “public act” that is alleged to have contravened s 49ZT(2) (homosexual vilification) – whether knowledge of two separate public acts must be established in one actual audience or whether knowledge of the facts of one is sufficient and, applying a test of a hypothetical ordinary member of the class to whom the public act was directed, knowledge of the facts of the first public act may be taken or assumed as being within the knowledge of the members of the audience present at the time of the second public act

CRIMINAL LAW – Sentence - Where unexplained delay of 17 months between admissions made by applicant and charges being laid – Where delay found to have resulted in the applicant becoming anxious and concerned – Whether the sentencing judge erred in finding that the delay was not to the applicant’s detriment – Relevance of delay on sentence CRIMINAL LAW – Sentence – Whether sentencing judge erred in partially accumulating sentences for offences arising from one course of conduct – Whether sentencing judge erred in making a recognizance release order to operate after the applicant had served 70% of the head sentence CRIMINAL LAW – Sentence – Offences of revenue fraud – Whether the sentence imposed was manifestly excessive – Whether some other sentence warranted in law

PRACTICE – application to reopen after judgment delivered but before orders entered – issue raised by appellant and not determined by court – no disentitling discretionary factor – application granted

CORPORATIONS – winding up – winding up in insolvency – adjournment of winding up proceedings –where administrator appointed immediately prior to hearing of winding up application – whether in interests of company’s creditors that company continue under administration rather than be wound up – level of persuasion required – where short adjournment sought – where petitioning creditor opposes adjournment – where likely that deed of company arrangement will be proposed – held, continuing under administration for short period in interests of company’s creditors.

CRIMINAL LAW – evidence – admissibility of letters between accused and witness – evidence as to consciousness of guilt – whether prejudicial effect outweighs the probative value – discretion to exclude evidence – evidence admissible

REAL PROPERTY – s 66G of the Conveyancing Act 1919 (NSW) – whether this is a case where the court should exercise its discretion not to make an order under s 66G

COSTS – general rule that costs follow event; exceptions to the – where claim could have been commenced in Small Claims Division of Local Court – where case was determined in favour of plaintiffs – where defendant’s cross claim rejected

EQUITABLE REMEDIES – relief against forfeiture – whether claim for relief against forfeiture is a “defence” within s 6 of the Law Reform (Law and Equity) Act 1972 (NSW) – whether and to what extent the Civil and Administrative Tribunal has power to award relief analogous to equitable relief against forfeiture pursuant to ss 20 and 21 of the Agricultural Tenancies Act 1990 (NSW) – held that the Tribunal can give effect to a defence to a claim for possession that tenant under an agricultural lease is entitled to relief against forfeiture pursuant to s 6 of the Law Reform (Law and Equity) Act and that the Tribunal has power under ss 20(1)(b) and 21(1)(a) of the Agricultural Tenancies Act to make orders in the nature of relief against forfeiture COURTS AND TRIBUNALS – jurisdiction of Supreme Court and Civil and Administrative Tribunal – plaintiff and defendant are lessee and lessor respectively under an agricultural tenancy – defendant commenced proceedings in the Tribunal seeking possession of the land – plaintiff sought to have Tribunal proceedings transferred to Supreme Court – plaintiff then commenced proceedings in Supreme Court seeking relief against forfeiture – application for transfer dismissed by Tribunal – appeal dismissed by Appeal Panel – plaintiff sought leave to appeal to Supreme Court – defendant applied to have proceedings for relief against forfeiture dismissed or stayed – whether Supreme Court has jurisdiction to hear claim for relief against forfeiture where the Tribunal proceedings were commenced before the Supreme Court proceedings – whether there was an “issue arising under the application was the subject of a dispute in proceedings pending before a court” within clause 5(3) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – held, dismissing the claim for relief against forfeiture and staying the claim for damages: where a claim for possession of land is made in the Tribunal and subsequent Supreme Court proceedings are commenced seeking relief against forfeiture, the Supreme Court has no jurisdiction in relation to that issue

EVIDENCE – whether unlawfully obtained evidence was properly admitted under s 138 of the Evidence Act 1995 (NSW) – vehicle stopped by police on grounds that were found not to be reasonable – before search of vehicle or occupants commenced passenger dropped prohibited drugs on ground – whether dropping of drugs irrelevant consideration in determining whether illegally obtained evidence ought be admitted JUSTICES – latitude to be given to reasons given ex tempore – no opportunity to remove infelicities of expression – whether phrase “benefit of the doubt” indicated that Magistrate applied criminal standard of proof to determination whether contravention was deliberate or reckless

WILLS & ESTATES - construction of will - testamentary trusts - where the will set up a primary trust for the testator’s wife which upon her death would revert to secondary trusts for the testator’s four daughters - where the will named the testator’s son-in-law as ‘Appointor’ for the primary trust - nature of the appointor’s powers under the will - whether it justified the appointor’s purported removal and replacement of two of the original trustees of the primary trust with trustees with himself and his wife - intention of the testator - whether extrinsic evidence sufficient to demonstrate direct instructions or actual intention of the testator - principles of construction - whether words should be read in to the will - whether the requirements to read the document as a whole and to avoid inefficacy provide any basis for the construction contended for by the defendants - whether rectification of will available under the general law

TORTS – alleged medical negligence resulting in amputation of leg – whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination – whether amputation would or could have been avoided if ischaemia diagnosed at first examination – insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made CREDIBILITY OF WITNESSES – evidence of usual practice – inferences from clinical notes – importance of timing of versions given by plaintiff compared with contemporaneous business records

SUCCESSION – family provision – costs – unsuccessful plaintiff COSTS – family provision – costs of unsuccessful plaintiff – appropriate order

Murder; wound with intent to murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

PROCEDURE - interlocutory issues - application for disclosure before evidence - Practice Note guiding the exercise of discretion - relationship between Practice Note and Rules - where practice note requires exceptional circumstances necessitating disclosure - where the facts in issue were not identified before hearing - where the categories of documents sought cover vastly more material than is capable of bearing on those facts in issue - where applicant conceded that many documents were merely on ‘wish list’ - delay in bringing application

CRIMINAL LAW – Conviction appeal – sexual intercourse with a person under 16 knowing she was not consenting – whether verdict was unreasonable and could not be supported by evidence – applicant uncle of victim – both from Sierra Leone – reservations as to verdict expressed by trial judge – general nature of description of offence – interpretation of evidence allowing for cultural issues – importance of medical evidence – early complaint – verdict open to jury – whether jury should have been discharged – evidence before jury because of oversight by defence counsel – strong direction by trial judge – no miscarriage of justice – appeal dismissed.

Criminal law sentencing – wounding with intent to murder – injuries voluntarily sustained by offender not extra-curial punishment but relevant to full term – s 21A(2) vulnerable looks to group characteristics not individual situation

PRACTICE AND PROCEDURE – security for costs at first instance – primary judge declined to make security order because its effect would be to stultify the proceedings – opportunity given to plaintiff before being required to give security to obtain evidence in response to defendant’s evidence – no error shown

ADMINISTRATIVE LAW – judicial review - whether New South Wales Civil and Administrative Tribunal (NCAT) has jurisdiction to hear Notice of Complaint lodged in Medical Tribunal prior to its abolition – application of transitional provisions – whether Medical Tribunal proceedings were “unheard” – whether NCAT has power to impose conditions by way of interlocutory order –whether principal member sitting alone by consent of the parties had power to make orders - whether this Court should grant relief before tribunal determines final orders - whether Health Care Complaints Commission should be removed as a party to proceedings