Cases and authorities

ADMINISTRATIVE LAW – Appeal and Review – Application for inquiry – Whether doubt or question as to guilt – Application refused

CONTRACTS – Construction and interpretation – Rectification – Mistake – Correction of misnomer of beneficiary of bank guarantee

ADMINISTRATIVE LAW­ – harness racing horses – cobalt – prohibited substance – alleged reasonable apprehension of bias – challenge to decision of Chief Steward to suspend licence pending inquiry and Chief Steward’s membership on inquiry panel – whether Chief Steward a material witness – importance of logical connection between identified matters and alleged apprehension

SUCCESSION – Family provision order – Application by de facto husband of the deceased SUCCESSION – Family provision order – Importance of freedom of testamentary disposition SUCCESSION – Family provision order – Factors to be taken into account when making a family provision order – Appropriate order

CRIMINAL LAW – Inquiry subsequent to conviction – Crimes (Appeal and Review) Act 2001 s 78 – Applicant convicted of an offence contrary to s 233B Customs Act 1901 (Cth) – whether doubt or question as to guilt – evidence of accomplices – corroboration – reliability and credibility of principal witnesses – failure to call principal witness – availability of new evidentiary material.

CRIMINAL LAW – forensic patient – serious sexual offences found proven at special hearing – limiting term expired – further extension order made – extension order due to expire 21 March 2015 – application for interim extension order at preliminary hearing – regime under Schedule 1 to Mental Health (Forensic Provisions) Act similar to Crimes (High Risk Offenders) Act – similar principles to be applied – defendant requires current level of supervision – need to ensure safety of community – moderate to high risk of relapsing into violent conduct – interim extension order made.

CORPORATIONS – external administration – winding up – winding up in insolvency – creditors statutory demand – application to set aside – where demand based on judgment arising upon filing of adjudication certificate under Building and Construction Industry Security of Payments Act – whether amenable to genuine dispute – whether amenable to offsetting claim – whether pendency of claim that adjudication is incorrect can found offsetting claim

CONTRACT – agreement between testamentary beneficiaries on conditional release of debt to the estate – whether agreement created debt enforceable by executors – effect of termination of agreement ESTOPPEL - estoppel by convention – whether agreement between beneficiaries of the estate founded on common assumption that there was an enforceable debt to the estate – whether agreement revealed adoption of common assumption SUCCESSION – wills – construction of will – whether the will released debt owing to the testator – whether release conditional upon debtor having provided registered security for debt – use of evidence of surrounding circumstances evidence to identify knowledge and intentions of testator

PROCEDURE – judgments and orders – motion to set aside judgment – whether the motion in effect seeks to re-agitate evidence and arguments already advanced – principle of finality

APPEAL AND NEW TRIAL – appeal sought in respect of four decisions – whether any discernible ground of appeal has been specified

PROCEDURE – interlocutory issues – whether to grant leave to appeal from order staying proceedings by an insured against his insurer pending provision of security for costs – whether case management principles a relevant consideration in making such an order – whether primary judge failed to consider plaintiff’s prospects of success – whether primary judge failed to give proper consideration to whether proceedings would be stultified by making the order – significance of impecuniosity of a natural person – whether primary judge failed to have regard to burden of proof to be satisfied by defendant alleging the plaintiff’s claim is fraudulent – whether primary judge failed to give adequate reasons – leave to appeal granted – appeal dismissed

PROCEDURE – civil – application to vacate proceedings – application refused

Wills – Construction – gift with proviso – proviso fails – whether charitable trust – whether specific or general charitable purpose

REAL PROPERTY – caveat – whether basis for extension REAL PROPETY - application for a freezing order INTERLOCUTORY – amendment of documents

DEFAMATION – pleadings – application by plaintiff for leave to amend pleadings so as to include defendants’ contextual imputation as one of the imputations of which the plaintiff complains – whether an abuse of process – discretionary considerations

PROCEDURE – notice of motion – order sought under s 5(1) of the Jurisdiction of courts (Cross Vesting) Act 1987 (NSW) that these proceedings be transferred to the Family Court of Australia – order refused – application for stay – stay granted

CONTRACT – Guarantee and indemnity – whether second defendant’s conduct in appending his signature to signing pages connoted assent to the terms contained in a Guarantee and indemnity proffered by the plaintiff to him for his signature – HELD: plaintiff signature communicated his assent to be bound by the Guarantee and indemnity NON EST FACTUM – requirements for the defence – whether in the circumstances the defence has been made out – HELD: defence fails because the second defendant’s mind went with his signature and no other basis for not being bound has been put forward

PROCEDURE – civil – application – re-open Second Cross-claim to withdraw admissions – proceedings have been fully determined – applicant has previously made deliberate decision not to participate in hearing on then existing proceedings - prejudice to cross-claimants if application granted – potential for inconsistent findings if new evidence adduced – contrary to administration of justice for Court to make inconsistent findings – not in interests of justice to grant application – application dismissed

TORTS – negligence – liability for criminal act of co-worker – whether exception to Modbury principle – causation where psychological injury caused by attempted murder TORTS – negligence – whether a duty of care is owed by the defendant where the plaintiff was contracted out from a labour hire company – whether such a duty is analogous to an employer and employee relationship - whether the defendant has breached its duty of care to the plaintiff under the Civil Liability Act TORTS – negligence – the liability of the employer to the plaintiff – whether absence of employers control took risk outside scope of employers liability – application of s 151Z Workers Compensation Act WORKERS’ COMPENSATION – employer’s liability – psychological injury – the application of Part 3 of the Civil Liability Act – whether the risk of personal injury including mental harm was reasonably foreseeable DAMAGES – torts – negligence – workers’ compensation – quantum of damages for near catastrophic injury

CONTRACT – construction – construction of dispute resolution clause – where two separate mechanisms for dispute resolution – where one dispute resolution clause provided for appointment of expert – intentions of the parties – commercial convenience – jurisdiction of expert

MEDICAL NEGLIGENCE – evidence – expert evidence – reports – admissibility of expert reports – evidence by video link – whether order should be made in respect of experts whose reports are inadmissible – whether separate trial of damages and liability

SENTENCE – manslaughter by excessive self-defence – offender and deceased in an abusive domestic relationship – threatening telephone calls made by deceased to offender on the day of the offence – physical assault by deceased on offender and members of her family – deceased stabbed during altercation with members of the offender’s family – exceptional circumstances – appropriate case for a suspended sentence.

REAL PROPERTY – easements – right of carriageway – construction of right of carriageway – substantial interference – development consent obtained by owner of servient tenement – whether proposed development a substantial interference – imposition of height restriction on right of carriageway – narrowing of right of carriageway

CRIMINAL LAW – final order for an Extended Supervision Order – pursuant to Crimes (High Risk Offenders) Act 2006

CRIMINAL LAW – conviction appeal – sexual intercourse and attempted sexual intercourse with child under 10 years – appellant convicted of attempt offence but acquitted of sexual intercourse offence – whether jury verdicts were factually inconsistent and unreasonable – whether “unreliable evidence” warning should have been given with respect to the evidence of the complainant – no factual inconsistency between verdicts – no need for warning under s165 of the Evidence Act 1999 – no miscarriage of justice.

CRIMINAL LAW – sentence – sexual offences with child – applicant with cognitive and intellectual difficulties – whether taken into account by sentencing judge – no causal link to offending – whether reduced weight should have been given to general deterrence – whether protection of society significant – no error demonstrated

CRIMINAL LAW – sentence appeal – alcohol fuelled violence – separate offences of domestic violence – breach of bond – delay in sentencing – late plea of guilty – appropriate discount for late plea – accumulation of sentences – special circumstances – failure to adjust statutory ratio in relation to total effective sentence – where judge found special circumstances in factors other than accumulation – limited intervention in light of serious offending

Commercial lease of a vineyard; expert determination clause; whether expert’s determination (said to be ‘final and binding’) open to review by the Court on the basis that the expert had allegedly misconstrued the clause under which he was to make the determination; whether the defendant was estopped from contending that the determination was final and binding; whether the expert had misconstrued the relevant clause.

CRIMINAL LAW – evidence – admissibility of CCTV footage – where footage from two sources is to be presented side by side – not prejudicial – CCTV footage admissible

CRIMINAL LAW – confiscation of proceeds of crime – question of reasonable suspicion - restraining orders made ex parte

REMEDIES – statutory remedies – Corporations Act 2001 – section 1322(4) orders – where association incorporated under the Associations Incorporation Act 2009 (NSW) – where association at deadlock between two factions vying for control – where neither side’s evidence satisfactory – orders on the just and equitable ground – where each faction seeks relief under section 1322(4) – whether relief to be granted on condition that the association hold an extraordinary general meeting for the purpose of electing the committee and its office bearers – costs – whether parties entitled to recoup legal costs from accounts of the association CORPORATIONS – associations – applicability of Corporations Act 2001 to associations –fiduciary duties of office bearers – whether expending association funds on litigation to determine control of the association amounts to breach of fiduciary duties

APPLICATION FOR DISMISSAL – want of prosecution – plaintiff’s ill health

PRACTICE AND PROCEDURE – application to vacate hearing date – complex medical negligence matter – application to vacate brought 2 ½ weeks before hearing date – change of solicitor with new solicitors wishing to re-instate a claim previously abandoned – ss 56-58 of Civil Procedure Act 2005 – application to vacate hearing date refused.

APPEAL – appeal from decision of the Local Court – amendment of originating summons pursuant to s.65(2)(b) of the Civil Procedure Act 2005 – substitution of company name for Director’s name as plaintiff – whether mistake made was amenable to correction pursuant to s.65(2)(b) – leave to appeal – statutory constraints on right to appeal - principles relevant to determining question of leave – question of error in exercise of discretion – leave to appeal refused

DEFAMATION – procedure – defence of contextual truth; whether contextual imputation capable of arising – whether discovery of documents is necessary in accordance with Practice Note SC CL 4 – dispute as to interrogatories

CRIMINAL LAW – evidence – s 281 Criminal Procedure Act – admissibility of evidence of unrecorded conversation between accused and investigating official – where the investigating official could reasonably have suspected that the accused committed an indictable offence – where no reasonable excuse for not recording the conversation – unrecorded conversation inadmissible

CRIMINAL LAW – evidence – s 126B Evidence Act - admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others - public interest concerns mitigated – evidence admissible

ADMINISTRATIVE LAW – Claim for prerogative relief – Motor Accidents Compensation Act 1999 (NSW) ss 63(1), 63(3) and 63(4) – whether a decision of the proper officer of the Authority to refer to a three member panel was beyond power – HELD – s 63(3) requires and permits only the application referred to in s 63(1) to be referred – the proper officer invalidly referred a clarified dispute rather than the application – this was beyond power and void.

EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Disentitling conduct alleged - Value of the estate’s property in dispute - Extent of debts in dispute - Issues in respect of the plaintiff’s and defendant’s circumstances - Question of right to reside or life interest in favour of deceased’s brother - Plaintiff’s right to costs challenged - Order for cost capping sought by defendant - Application by plaintiff to reopen - Provision as a lump sum or percentage of net real estate proceeds.

REMOVAL TO COURT OF APPEAL – related matter before the Court of Appeal - challenge to the proceedings before NSW Civil and Administrative Tribunal - to be heard in the Court of Appeal before the Tribunal matters continue

RESTRAINING ORDER – dispute over ownership of property in defendant’s possession - defendant restrained from dealing with engagement ring and earrings until further orders – no point of principle

PROCEDURE – civil – application to vacate hearing for Vexatious Proceedings – scandalous material - serious allegations against a judicial officer of this Court – voluminous material from defendant – application refused

CRIMINAL LAW – interlocutory rulings – application to discharge the jury – witness volunteers information agreed not to be led – whether irreparable prejudice – whether prejudice could be cured by directions – application refused

CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using “scenario technique” – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police “elicited” admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone

APPEAL - supply of a prohibited drug - whether appropriate weight attributed to applicant’s personal history - Bugmy v The Queen [2013] HCA 37 - substantial weight attributed - leave to appeal refused APPEAL - breach of good behaviour bond - bond revoked - applicant sentenced to term of imprisonment - whether error in failing to consider non-custodial sentences - Crimes (Sentencing Procedure) Act 1999 (NSW), s 7, s 12, s 98 and s 99 - power of appellate to entertain new issues in the interest of justice - R v Birks (1990) 19 NSWLR 677 - uncertain suitability of appellant for intensive correction order - proceedings remitted to District Court for further consideration APPEAL - sentencing - whether error in declining to find special circumstances justifying reduction in non-parole period - first custodial sentence of offender - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 - no error

CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child under 10 years – whether too much weight given to Victim Impact Statement – harm asserted in statement well beyond that which might ordinarily be expected – unusual facts – no sexual motivation – applicant affected by mental disability – assistance to authorities – genuine remorse – sentence manifestly excessive – need to re-sentence.

CRIMINAL LAW – importing drugs – sentencing – two offences – judge imposes non-parole period for each offence – whether overall non-parole period manifestly excessive – whether a normal range for ratio of non-parole period to overall sentence – use of comparative cases

PROCEDURE - civil - urgent interim injunction – no originating process subsequently filed - dispute as to unpaid debt – dispute as to disposition of personal property – no evidence from plaintiff – struck from list with undertakings of the parties

CONSTITUTIONAL LAW – whether the Schools Assistance Act 2008 and Australian Education Act 2013 are contrary to Section 106 and 107 of the Constitution – insofar as they permit or provide for Commonwealth funding of the Malek Fahd Islamic School CONSTITUIONAL LAW – whether the Schools Assistance Act 2008 and Australian Education Act 2013, insofar as they permit or provide for Commonwealth funding of the Malek Fahd Islamic School, exceed the constitutional power of the Commonwealth by overriding the power of the State of New South Wales in the areas of religion and education EDUCATION & SCHOOLS – independent non-government religious school – Malek Fahd Islamic School – effect of funding by Commonwealth – whether ‘establishes’ a religion, ‘imposes’ any religious observance or ‘prohibits’ the free exercise of religion – contrary to Section 116 of the Constitution STANDING – whether the plaintiffs have standing to challenge validity and laws and executive acts relating to Commonwealth funding in respect of past expenditure

COSTS – departing from general rule that costs follow the event – probate litigation – litigation brought about by state of papers left by deceased – whether unreasonable for unsuccessful party to not accept Calderbank offer